#### WM. FRONEBURGER vs. H. D. LEE, Ex’r, &c., et al.

1. Under our old system of practice and procedure, a' Justice of the Peace had a right to grant a new trial when judgment was rendered against an absent party, if a proper application was made within ten days. Rev. Code, chap. 62, sec. 15. The provisions of that Statute have not been materially changed under the new system. C. C. P., sec. 508.

2. When both parties to an action are present at the trial in a Justices’ Court, and the ease is heard, and judgment rendered; a new trial cannot be allowed. The party dissatisfied must appeal to the Superior Court. C. C. P,, see. 528.

Motion to dismiss an appeal heard before Logan, Judge, at Fall Term 1861 of Cleaveland Superior Court.

The plaintiff sued the defendants upon an account and they were cited to appear before a Justice of the Reace. Both parties appeared on the day of a trial, witnesses were examined, and the case was heard by the Justice, and a judgment rendered in favor of the defendants. Several days after the trial, the plaintiff filed an affidavit and asked for a new trial before the Justice. A new trial was granted, and from this order of the Justice the defendants appealed to the Superior Court. In the Superior Court, plaintiff moved to dismiss the appeal. The motion was allowed, and the appeal dismissed from which judgment the defendants appealed to the Supreme Court.

Bragg & Strong, Young and Batchelor for plaintiff.

Bynum for defendants.

DiCK, J.

Under our old system of practice and procedure, a Justice of the Peace had a right to grant a new trial when rendered against an absenRparty, if a proper application was made in ten days afterwards. Rev. Code, ch. 62, sec. 15.

*334The provisions of this Statute have not been materially changed under our new system. C. C. P., sec. 508.

When both parties to an action are present at a trial in a Justice’s Court, and the case is heard and judgment rendered, a new trial 'Cannot be allowed. The party dissatisfied with the judgment can have a remedy only by appeal to the Superior Court. C. C. P., sec. 528.

There was error in the ruling of His Honor. This will be certified to the end that the proper proceedings may be had to set aside the order for a new trial made by the Justice.

Pee CueiaM. Judgment affirmed.