
    Abraham v. Alford.
    
      Trover for Conversion of Mule.
    
    1. Appeal from justice’s judgment; liow triable. — On appeal from a judgment rendered by a justice of the peace, although the defendant fails to appear, it is error to render judgment final by default; without the intervention of a jury, for the amount oí the justice’s judgment: that judgment is vacated by the appeal, and the statute (Code, § 3121) requires that the trial shall be de novo on the merits.
    2. Trover; judgment final by default. — In an action of trover, it is error to render judgment final by deiault, without the intervention of a jury to assess the damages.
    Appeal from the City Court of Montgomery.
    Tried before the Hon. John A. MiNNis.
    
      R. M. Williamson, for appellant.
    Geo. E. Moore, contra.
    
   BRICKELL, C. J.

This was an action of trover for the conversion of a mule, commenced before a justice of the peace, in which the appellee was plaintiff, and the appellant was defendant. The defendant failing to appear before the justice, judgment by default was taken against him; and after hearing evidence, the justice rendered a final judgment for fifty dollars damages, and four dollars and eighty cents, eostsof suit. From that judgment, the defendant appealed’ to the City Court; and not appearing in that court, a final judgment by default was rendered against him, without the intervention of a jury, for the amount of the judgment rendered by the justice. This was error. Appeals from judgments of a justice of the peace are triable de novo, upon their merits, without regal’d to the judgment of the justice. By the appeal, that judgment is vacated, and ceases to have any force or effect, either as an estoppel, or as matter of evidence. Freeman on Judgments, § 828. The judgment of the justice is not reversed, or affirmed; but a new, distinct, and independent judgment, as may be required by the merits shown on the trial, is rendered by the City or Circuit Court. The rendition of a final judgment by default, in an action of trover, without the intervention of a jury to assess the damages, is unwarranted.

Reversed and remanded.  