
    Fenton v Russell & Lindlay.
    Where there is a judgment of non suit rendered, in a suit before a justice of the peace, and that judgment is set aside, anda new trial granted, and judgment again rendered against plaintiffs, an appeal from such judgment maybe taken, although more than ten. day's may' have elapsed since the rendition of the judgment of non suit, and it makes no difference whether the suit is founded on an instrument of writing or not
    Appeal from the Circuit Court of Audrian County.
    Abernathy for Appellant.
    1st. That the court erred iu not dismissing said appeal ass said appeal was not taken within ten days after the judgment of non-suit, and for costs. See revised statutes, page 369, section 3, p. 359,1,2, & 3.
    2nd. That the non suit in this case was wrong.
   Opinion of the court delivered by

Tompkins Judge.

Russell and Limlley commenced an action on a promissory note before a justice of the peace, in the County of Au-drain, against James E. Fenton; judgment being given against them, they appealed to the circuit court. That court gave judgment for the appellants. To reverse that judgment Fenton appeals to this court. The justices summons was returned on tho 26th day of January 1S39, when, as the justice shows, the defendant appeared in person, and tiie plaintilFs by agent. This is a copy of the note sued on, ‘•Thirty days after date I promise to pay to Russel & Lind-ley or order, fifty nine dollars and fifty eight cents, cfcc.” On the trial before the justice, the agent of the plaintiff was required by the defendant to prove that John Russell and Giles Lindley, in whose behalf the summons was issued, were the persons to whom the note sued1 on was made.This, it is stated in the justices return, the agent being unable to prove; the justice, on the defendants motion, entered a. judgment of .non suit against the plaintiffs. On the fifth day of February then next, the justice, on the motion of the plaintiffs, set aside the judgment of non suit, and granted them a new trial. On this trial judgment being again given against the plaintiffs, they appealed to the circuit court as above stated. ■' The defendant before the justice of the peace, appellant here, moved the,circuit court to dismiss the cause, because the appeal was not taken in time. The last-trial before the justice was on the 23rd day of February, and on that day the appeal, was taken. ’ But it is contended that the justice had - no authority to. set aside this judgment by non suit, and'as the statute requires the appeal to be .taken within ten days after the .judgment, and as this appeal was taken more tiran ten days after th'e first trial, it was too late. The statute allows -'the justice of the peace to set aside, a judgment of non suit on terms, see 3 section of 5th article the act establishing justice’s courts, page 359, of the digest 1835. But it is contended that the judgment of non suit must be rendered in pursuance .of the first section of the said article, when the plaintiff fails to appear, and his demand is not founded on an instrument of writing by which is liquidated, but on an unliquidated demand. It is not so ■apparent why the-legislature should incline to favor a plain-who does not appear on the day of trial more than one does appear. He who does appear and uses his endeavors to try his.cause is certainly more deserving favor, than he who does not appear; yet there is no doubt the plaintiff', if he' had failed to appear, aiad his demand been unliquidated, would have had a right under the statute to have his judgment of non suit set .aside. This was argued ex parte, and therefore I may not perhaps so well informed of the law, but the right and justice of case is not difficult to be. perceived. The defendant not pretend that the demand-is unjust, and theireturn the justice shows that it was on his motion the judgment of non suit was rendered:- the object of the statute being to decide small causes before the justices of the peace, in the most equitable and expeditious manner, without oppressing the suitors with the trouble and expense of long and formal suit. It seems not at all improper to sentence the defendant now to pay that debt, which he would not attempt to di's-prove in the circuit court. It may be added that if the r. J . . . , tice of the peace rendered a wrong judgment, it was done on the motion of the defendant himself. But I believe judgment of non suit rendered by the justice and the setting of it aside afterwards was well enough. The'judgment the circuit court is therefore affirmed. •

w},crc t}lore a judgment of non suit rendered, in a j^jeo the peace, and of^t/sUg^t"a. side, and a new trial ■granted, and judgment rendered against plaintiffs, an appeal from such judgment may Be taken, although more than ten days may have elapsed since the rendition of the judgment of non suit, and it makes no difference whether the suit is founded on an instrument of writing or not.  