
    E. J. Dickerson v. Maria Mechling.
    [Filed November 11, 1890.]
    Appeal: District Court: Dismissal. Judgment was rendered by a justice of the peace on the 7th day of August, 1889, from which the plaintiff, on the same day, appealed to the district court and filed a transcript therein. On the 19th of that month the plaintiff filed a petition. No pleadings were filed by the defendant, and on the 17th of October, 1889, the cause was continued. Afterwards, on the same day, the continuance was set aside and the appeal dismissed on the motion of the defendant — the defendant at the time being in default of an answer. Seld. That the appeal was properly taken, and the court erred in dismissing it.
    Error to the district court for Gage county. Tried below before Appelget, J.
    
      Winter & Kauffman, for plaintiff in error.
    
      T. D. Cobbey, contra.
    
   Maxwell, J.

This action was originally brought before a justice of the peace, and judgment rendered on the 7th day of August, 1889. The plaintiff appealed from the judgment, and on the 7th day of August, 1889, filed his transcript in the district court.

On the 19th day of August, 1889, the plaintiff filed a petition in the case. No answer was filed by the defendant, and on the 17th of October, 1889, the'cause was continued. Afterwards, and on the same day, the court set aside the continuance and dismissed the appeal on the motion of the defendant. A motion was afterwards filed to reinstate the appeal, which motion was overruled.

The question presented to this court is, Did the court err in dismissing the appeal? The undertaking seems to have been filed within the statutory period, and the transcript and petition properly filed in the district court, and the case, so far as this record discloses, was properly in that court. No written motion was filed in the'case; at least none is preserved in the record assigning any reason why the appeal should be dismissed. So far as appears it was an arbitrary exercise of power by the court, which we cannot approve.

The judgment of the district court is reversed, the appeal reinstated, and the cause remanded for further proceedings.

Reversed and remanded.

The other judges concur.  