This cause was commenced in a justice’s court. On the trial, after the plaintiffs closed their case, the defendants moved for a nonsuit, which was granted by the justice. The plaintiffs then appealed to the county court, but omitted to file the necessary affidavit as to the amount of their claim, so as to secure a trial de novo in that court. The cause was therefore tried in the county court on the original papers and the return of the justice; and judgment was rendered in favor of the plaintiffs for $70, and costs. The first objection taken to this judgment here is, that the county court had no authority whatever to render a judgment upon the merits, but was limited to a mere affirmance or reversal of the judgment of the justice, in whole or in part. This position is unquestionably sustained by the previous decisions of tins court as to the power of the appellate court in cases of this character. Carney vs. Doyle, 14 Wis., 270; Stoppenbach vs. Zohrlaut, 21 id., 385.
In the case of Carney vs. Doyle, considerable weight is given the previous decision of the court in Dykens vs. Munson, 2 Wis., 245, construing the provisions of the statutes of 1849. And that case to some extent followed the earlier cases in Chandler, arising under the statutes of 1839 and the statutes of 1849. Phillips vs. Geesland, 1 Chand., 57; and Hibbard vs. Bell, 3 id., 206. In all these-cases, so far as the court had occasion to consider the power of the appellate court in this class of cases, it was declared that that court could only reverse or affirm the judgment of the justice in whole or in part, and had no authority to enter judgment upon the merits.
The correctness of the decision in Carney v. Doyle and Stoppenbach v. Zohrlaut is questioned by the counsel for the respondents, who insists that the court failed to give due weight to the difference between the provisions of the statutes of 1839 and 1849 and our present statute, and conse*117quently, it is said, misapplied tbe trae doctrine of Dykens v. Munson. Tbe latter case, it is suggested, was removed to tbe county court by certiorari, tbe office of wbicb writ was merely to give tbe appellate court power to review and correct errors assigned in tbe proceedings before tbe justice; while Carney v. Doyle came up by appeal, wbicb, ex vi termini, gave tbe appellate court power to review tbe whole record, and pronounce a judgment upon tbe merits “ according to tbe justice of tbe case.” It is true, tbe present statute provides for an appeal from tbe judgment of a justice in all cases, and bas abolished tbe statutory writ of certiorari. And formerly there was likewise a very broad distinction between proceedings on error and on appeal, and tbe jurisdiction exercised by tbe appellate court was certainly widely different in tbe two cases. But because this was once a well established distinction as to tbe mode of proceeding in tbe two cases, it is not safe to assume that under tbe code tbe same distinction is inflexibly kept up. Tbe legislature bas provided that all civil causes may now be removed to tbe appellate court by appeal instead of a writ of error or certiorari, and yet it does not necessarily follow from this that tbe intention was that tbe appellate court should review tbe whole case upon tbe merits, and give judgment accordingly to tbe very justice of tbe case. In common law actions tried by a jury, this court is confined to an examination of tbe errors upon tbe record, although tbe case may come up by appeal. Because tbe case comes up by appeal instead of writ of error, it bas not been supposed that tbe jurisdiction of this court over tbe cause was enlarged, or in any degree changed. And so in these cases removed from tbe justice to tbe county or cbcuit court by appeal. Tbe proceeding by appeal was, doubtless, only intended as a substitute for tbe wiit of certiorari, when that writ would formerly have been resorted to; but this change of tbe method of bringing the cause to tbe appellate court was not intended to enlarge tbe jurisdiction of tbe court of review-*118Tbis bas been our yiew of tbe statute, and we still tbinlc tbis construction of it is correct. And it follows from tbis that tbe county court bad no power to render a new judgment upon tbe merits, as was done in tbis case.
We are, furthermore, inclined to bold, upon tbe record, that tbe judgment of tbe justice was correct, for tbe reason that tbe evidence failed to show negligence on tbe part of tbe defendants. Tbe defendants, when they returned tbe horse, gave a full account as to bow tbe injury happened. It is true, tbe defendants promised to pay all damages, but tbis is not to be construed into an admission that tbe injury was caused by their misconduct. They might have been willing to make good tbe loss though not in default. Tbe action was not upon tbis promise; if it bad been, we are inclined to think, upon tbe evidence before us, tbe plaintiffs should have recovered. But as tbe case now stands, we think tbe judgment of tbe county court must be reversed, and that of tbe justice affirmed.
By the Court. —So ordered.