
    JOHNSON v. MARION.
    Appeal — Justices’ Coubt. — Upon an appeal taken from the court of a justice of the peace to the district court, if it appears that the bond filed is not in accordance with the requirements of the statute in such case made and provided, jjjie appeal may be dismissed on motion, and judgment entered for the amount received in the court below.
    Motion. — Such motion maybe made, although a notice of trial in the appellate court has been served by the party making the motion.
    Appeal from the Third District Court, for Carter County.
    This cause was tried in justice’s court before J. W. Stillman, J. P., and judgment was entered for the plaintiff for seventy-five dollars and costs, whereupon the defendant, Joseph Marion, appealed, under the statute, to the district court. On the eleventh of September, 1869, the cause was noticed by the attorney for the appellee in the district court. The notice of trial was as follows:
    “Territory of Wyoming, County of Carter, ss: In the District Court, Third Judicial District. W. H. Johnson v. Joseph Marion. Notice of trial. To Joseph Marion: Take notice that the above entitled cause will be tried at the next term of the district court, to be held at the court-house in South Pass city, on the twenty-second day of September, 1869. M. C. Page, attorney for plaintiff.”
    On the fifth day of October, 1869, counsel for said appellee made a motion in said court, Hon. J. W. Kingman, associate justice of the supreme court, presiding, to dismiss the appeal, on the ground that the bond was not in compliance with the statute, and that said appeal'had not been properly perfected. The following is a copy of the notice of motion:
    “Territory of Wyoming, County of Carter, ss: In the District Court, Third Judicial District. W. H. Johnson, plaintiff, v. Joseph Marion, defendant. The above-named defendant take notice that on the eighth day of October, 1869, I will move in open court to dismiss the appeal granted in the above entitled cause, on the ground that said appeal has not been properly taken and perfected according to law. W. H, Johnson, by.M. C. Page, his attorney.”
    Thereupon, said motion was granted, the appeal was dismissed, and judgment entered for seventy-five dollars, and costs of appeal, against the defendant, appellant, and over the objection of his counsel. The cause was then taken by the appellant to the supreme court on appeal.
    
      JE. J). Strunk,, counsel for plaintiff, claimed:
    I. That the service of the notice of trial was an appearance in the cause, and waived all defects in the bond, and that the cause was properly in the appellate court to be heard de novo.
    
    II. That on the motion to dismiss, it was error to order judgment to be entered in the district court.
    
      J. M. Gasey and M. G. Page, for the appellee.
   Judgment of the district court affirmed.  