#### Maplewood Coal Co. v. Charles A. Phillips.

1. Practice—Section 31 of the Practice Act Does Not Apply to Appeals.—Section 31 of the practice act has no application to the dismissal of an appeal. Either or both parties to a suit before a justice of the peace may take an appeal. And the party perfecting such an appeal by entering into the bond prescribed by law has the right to control the appeal so taken by him, and if for any reason he does not desire to further prosecute such appeal, or to carry the costs and burdens of it, he may dismiss the same as a matter of right, without consent of the opposite party or leave of the court.

Appeal from the City Court of Canton; the Hon. P. W. Gallagher, Judge presiding. Heard in this court at the November term, 1902.

Affirmed.

Opinion filed April 30, 1903.

I. C. Pinkney, attorney for appellant.

Chiperfield & Chiperfield, attorneys for appellee.

Me. Presiding Justice Wright

delivered the opinion of the court.

Appellee brought suit against appellant before a justice of the peace, and the latter not appearing, judgment was given by the justice of the peace against appellant for $75, and from this judgment appellee, Phillips, perfected his appeal to the City Court, after which appellant filed in that court its set-off against appellee. Appellee then moved the court to dismiss his own appeal, to the allowance of which appellant objected, but the court sustained the motion to dismiss the appeal and ordered accordingly, and awarded a procedendo, to which appellant excepted, and brings this appeal to reverse the judgment.

It is argued by appellant to effect a reversal in this court, *67that section 31 of the practice act, to the effect that when plea or notice of set-off shall have been interposed, the plaintiff shall not be permitted to dismiss his suit without consent of the defendant or leave of the court, prohibited appellant from dismissing his appeal in the City Court. We are of the opinion the section referred to has no application to the dismissal of an appeal. It is the undoubted law that either or both parties to a suit before a justice of the peace may take an appeal, and the party perfecting such appeal by entering into the bond prescribed by law, has the right to control the appeal so taken by him, and if for any reason he does not desire to further prosecute such appeal, or to carry the costs and burdens of it, he may dismiss the same as a matter of right, without consent of the opposite party or leave of the court.