
    The Louisville, New Albany and Chicago R. R. Co. v. Nicholson.
    
      Pbactice.—Appeal.—Dismissal of—Where a party who has appealed to the circuit court from a judgment rendered by a justice of the peace makes default, such cause may he tried, or the appeal dismissed, at the option of the court.
    From the Montgomery Circuit Court.
    
      S. C. Willson and L. B. Willson, for appellant.
    P. 8. Kennedy and W. T. Brush, for appellee.
   Perkins, C. J.

The appellee sued the appellant, before a justice of the peace, for the value of a steer killed by a locomotive of the latter, at a point on her road where the same was not fenced at all, and, of course, not securely fenced, but where it might have been.

Judgment on default against the appellant, before the justice, for eighteen dollars and seventy-five cents. Appeal to the circuit court.

The appeal bond admits that the judgment was rendered against “The Louisville, blew Albany and the Chicago Railway Company.”

The following is the only entry in the cause in the circuit court, after the appeal:

“And afterward, to wit, on the 21st day of September, 1875, it being the thirteenth judicial day of the September term of said court, and before the judge aforesaid, among others, the following were had, to wit:

“Allen Nicholson v. The L., N. A. and C. R’y Co.

“ On motion, it is ordered by the court, that the defendant be now here three times called, which is done in open court; as it comes not but wholly makes default, thereupon it is ordered by the court, that the appeal herein be dismissed and cause certified back to the justice.”

Subsequently, the appeal to this court was taken.

The practice in dismissing the appeal was regular, and no question is presented to this court, except such as arises upon the action of the circuit court. The court might have elected to try the cause, but was not bound to do so.

The judgment is affirmed, with costs.  