
    Henry W. McKinnon v. Leonidas Horn et al.
    Justice of the Peace. Nonsuit. Appeal.'
    
    A plaintiff whose suit before a justice of the peace has been dismissed because of his absence and failure to prosecute, may appeal to the circuit court from the judgment of fUsmissal.
    From the circuit court of Tate county.
    Hon. Z. M. Stephens, Judge.
    Horn and another, the appellees, were the plaintiffs and Mc-Kinnon, the appellant, was the defendant in the court below. From a judgment in plaintiff’s favor the defendant appealed to the supreme court. The facts are stated in the opinion of the court.
    
      J. F. Dean, for appellant.
    The appeal should have been dismissed. Code 1892, § 2417 Baird v. Bar dwell, 60 Miss., 164; 2 Ene. P. & P., 363 et seq.\. code 1892, § 940.
    
      F. A. Taylor, for appellees.
    The court below correctly overruled the motion to dismiss-the appeal from the justice court. Code 1892, §§ 82-85;. Gill'v. Jones, 57 Miss., 367; Freeman on Judg., secs. 12-16; Goodbar v. Owen, 70 Miss., 842; Supervisors v. Paxton, 56-Miss., 679; Mobile, ete., R. R. Go. v. Dale, 61 Miss., 209; 2 Am. & Eng. Ene. L., 425.
   Calhoon, J.,

delivered the opinion of the court.

Horn and another, partners as Horn & Co., sued McKinnon on an open account before a j ustice of the peace. There were two mistrials before the justice of the peace. On the third call for trial, the defendant, McKinnon, was present demanding trial, but the plaintiffs were absent, and their suit was dismissed by the coart a,t their costs. They appealed to the circuit court, which overruled McKinnon’s motion to dismiss, and this is assigned for error. It is insisted that Horn & Co. could not appeal, but that their only course was to sue again before the justice of the peace, because there was no trial on the merits. We cannot concur in this view. There was a final determination of that particular suit, and appeal was admissible. Gill v. Jones, 57 Miss., 367-370.

The verdict for Horn & Co. was • clearly right, and there is no error of law.

Affirmed.  