#### Parsell vs. Smyers.

The justice of the peace in rendering judgment states that “this case for the want' of proof to sustain the plaintiff’s demand was dismissed at the plaintiff’8 cost” — held that it was inferable from the entry that this was a final determination of the case upon the merits, and not a judgment of non-suit, and that an appeal would lie from it.

Appeal from the Circuit Court of Pulaski County.

Suit, by attachment, upon an open account brought by Thomas Parsell against Jacob Smyers before a justice of the peace of Pulaski county. On the return of the writ, the 8th of August 1844, was set by the justice for the trial. On the 16th July 1844 an order was made for the plaintiff to take depositions. On the applications of plaintiff the cause was continued several times to enable him to procure testimony. The last continuance was made to the 19 th October 1844, and on that day the transcript of the justice shows the following entry:

“ Now on this day this case, for the want of proof to sustain the plaintiff’s demand, was dismissed at the said plaintiff, Thomas Par-sell’s cost.”

Parsell appealed to the circuit court of Pulaski county, where the cause was determined at the October term 1845, before the Hon. J. J. Clendenin, Judge.

Smyers moved to dismiss the case for want of jurisdiction, stating as grounds of the motion, that the cause was dismissed by the *56justice on a failure of the plaintiff to introduce proof of his demand as in case of non-suit, and that no final judgment was rendered by1 the magistrate from which an appeal would lie. The court sustained the motion, and Parsell appealed to this court.

Cummins, for appellant.

Jokdan, contra.

Johnson, C. J.

delivered the opinion of the court.

The 170th sec. of chap. 87 of the Revised Code, provides that “ Any person aggrieved by any judgment rendered by a justice of the peace, except a judgment of non-suit, may, in person or by his agent, make his appeal therefrom to the circuit court of the same county where the judgment was rendered.” The justice in rendering judgment states that “this case for the want of proof to sustain the plaintiff’s demand was dismissed at the said plaintiff, Thomas Parsell’s cost.” The question here presented is whether this is a judgment of non-suit, or a final determination upon the merits. The cause does not appear to have been dismissed by the plaintiff himself, nor iirconsequence of a failure on his part to prosecute his suit. From the record we are led to infer that the plaintiff was present at the trial and made an attempt to establish his demand, but that in the opinion of the justice he failed to adduce sufficient proof to entitle him to a judgment for the amount of his demand, and consequently he decided against him and adjudged him to pay the costs of the suit. If this view be correct, and that it is we think there can be no doubt, it is clear that the judgment is not one of non-suit. The language used, it must be confessed, is not very technical, yet we think it equivalent to a regular judgment against the plaintiff upon the merits. We consider all the previous steps to be strictly in accordance with the provisions of the Statute. The Statute having been strictly pursued throughout the whole proceeding, and the judgment itself not being one of non-suit, we think it clear that the circuit court errad in dismissing the case for Want of jurisdiction. Judgmenl reversed.