
    Case 31 — APPEALS—JUSTICES’ COURTS
    Oct. 31.
    Bennett v. Thompson.
    APPEAL PROM LEWIS CIRCUIT COURT.
    In appeals prom justices’ to circuit courts the circuit court has power only to render judgment for the plaintiff for whatever may appear to he due him; or, if nothing is found to he due, then to dismiss the action; or, if the appeal is not regularly prosecuted or the court has no jurisdiction, to dismiss the appeal; and until some one of these things is done the case remains in the circuit court.
    The circuit court can not adjudge that the justice’s judgment “ he reversed,” etc.
    Such judgment of reversal is a nullity, and the case still remains pending in the circuit court; and
    The appeal to the Court of Appeals to reverse such a judgment of the circuit court is dismissed.
    B. E. Bennet,..........For Appellant,
    CITED
    Civil Code, sections 27, 66, 822.
    5 American Reports, 199.
    15 B. Mon. 555, Patton v. McCane.
    Geo. M. Thomas,.........For Appellee,
    CITED
    Civil Code, section 16.
    Revised Statutes, act of Feb., 1858, 1 Stanton, 361.
    1 Met. 566, Tipton v. Chambers.
    
      1 Met. 449, Clark’s heirs v. Lusk, &e.
    1 Met. 395, Brandies, &c. v. Stewart.-
    5 Dana, 596, Williams v. Wilson.
    7 Dana, 168, Bassett v. Oldham.
   JUDGE COFER

delivered the opinion oe the court.

Bennett sued Thompson & Bailey in a justice’s court upon an account for thirty dollars, and before trial amended his account so as to claim a judgment for fifty dollars.

The case was tried, and the court rendered judgment for the plaintiff for thirty dollars. From that judgment an appeal was prayed and prosecuted directly to the circuit court, where the following order was made: “ The parties appeared by attorneys, and by agreement the law and facts are submitted to the court. The appellant Bailey having died, the suit is abated as to him, and the court, being sufficiently advised, adjudges that the judgment of the court below be reversed, and that the appellants recover of the appellee their cost herein and in the court below expended.”

Bennett’s motion for a new trial having been overruled, he has appealed, and the appellee Thompson has moved to dismiss the appeal on the ground that the foregoing is not a final order, and therefore this court has no jurisdiction.

Section 849 of the Civil Code provides that appeals from judgments of the courts of justices of the peace “shall be docketed and stand for trial as actions by-ordinary proceedings. The action shall be tried anew as if no judgment had been rendered.”

It results from this provision that the order made by the circuit court in this case did not dispose of the action or put an end to the litigation, or in any way determine the rights of the parties. The order is therefore not final, and the case is still pending in the circuit court. The effect of the appeal was to so far annul'the judgment of the justice as to render it ineffectual, and to deprive the justice of any further power in the ease, except the appeal should be dismissed by the circuit court. The reversal of the judgment was a nullity. The only power the court had was to render judgment for the plaintiff for whatever might appear to be due him; or if nothing was found to be due, then to • dismiss the action; or if the appeal was not regularly prosecuted or the court had no jurisdiction, to dismiss the appeal; and until some one of those things is done the case remains in court.

Wherefore the appeal is dismissed.  