This action was commenced before a justice of the peace, and taken to the county court by appeal. In the county court, the defendant filed a motion to dismiss the case on the ground, that no judgment had been rendered by the justice below. On inspecting the copies of the proceedings before the justice, it appears that the justice rendered a judgment in favor of the plaintiff for his costs, but did not render a judgment for any damages ; such judgment was clearly irregular, but still it was such a judgment as either party could appeal from. The' fact that it was irregular, and wrong, is no reason why it should not be appealed from. The theory on which all appeals are taken, is that the judgment appealed from is wrong, and the object of the appeal is to have the error corrected.
In a subsequent stage of the proceedings, the defendant filed another motion to dismiss the suit, for want of jurisdiction in the magistrate before whom the suit was commenced, claiming that the amount in controversy exceeded the jurisdiction of a justice.
It appears from the case, that at the time the suit was commenced, the amount due on the note in suit, was less than one hundred dollars, but at the time of trial the accumulation of interest had increased the amount due to more than one hundred dollars. It is insisted, on the part of the defendant, that it is the amount due at the time of trial, that determines the jurisdiction, and that a justice does not assume jurisdiction of a case until the I’eturn day of the writ, and some proceedings *690■are had thereon before him in open court. This position is not tenable. We think the jurisdiction of the justice is determined by the amount due at the time the suit is commenced, and that the magistrate assumes jurisdiction of the case, when he issues a writ, takes a recognizance to the defendant for the security of his cost, and cites Mm to appear before him for trial. The suit is then legally pending before him. Witnesses may be summoned to appear, and depositions taken, to be used upon the trial, before him. The suit is as much pending before him, and his jurisdiction over the case is as perfect, after the service of the writ, and before the return day, as it is after the return day, when the trial is postponed. This rule, we think, is the only practicable one. The rule contended for by the defendant would leave the jurisdiction in doubt in many cases, as a party could never tell with certainty, when he commences his suit, what amount might be due when he comes to a final trial.
The motion to dismiss was properly overruled, and the judgment of the county court is affirmed.