
    Burns, Respondent, v. Hunton, Appellant.
    1. Where a judgment by default has been rendered by a justice of the peace, an appeal taken to a circuit court may properly be dismissed unless it appear that prior to the taking of the appeal an application had been made to the justice to set aside the default.
    
      Appeal from Benton Circuit Court.
    
      Gardenhire, for appellant.
    
      F. P. Wright, for respondent.
   Rylahd, Judge,

delivered the opinion of the court.

This suit is founded on an account due by defendant Hunton to the firm of Burns & Brother, and is brought by the plaintiff as surviving partner. The facts are very similar to those of the case of Burns as Adm’r, &c. v. Hunton, just decided. The suit was before a justice of the peace ; there was proper service of the writ, and judgment by default was correctly rendered in favor of plaintiff against the defendant, and, without making any application to set aside this judgment, Hunton takes an appeal to the Circuit Court. The plaintiff moved to dismiss the appeal, and the court sustained this motion. Hun-ton afterwards moved to set aside this order dismissing his appeal, which being denied him, he brings the case here by ap~ appeal. The decision just rendered in the case of Burns as administrator, &c., v. Hunton, settles the law of this case, and to the opinion therein given reference is made. Let the judgment be affirmed ; the other judges concurring.  