— This was an action Commenced before a justice of the peace for the possession of certain real estate rented to defendant, for the reason that he had failed to *389pay rent. Judgment was rendered against defendant before the justice, and within ten days he appealed to the circuit court. In the latter court defendant moved to dismiss the cause for the reason, among others, that plaintiff’s statement did not allege a cause of action. Plaintiff filed a motion to dismiss the appeal, based on the ground that defendant took his appeal without first moving to set aside the judgment by default. The court sustained defendant’s motion to dismiss the canse, and plaintiff appeals to this court.
The facts in regard to the judgment before the justice of the peace, as we gather them from the record, are, that on the day the cause was set for hearing, both parties appeared; the plaintiff’s attorney was present, but defendant’s was not, and on account thereof, he asked for a continuance, which the justice refused. He thereupon filed his application for a change of venue on account of the prejudice of the justice. This was also refused. Whereupon the defendant declared his intention of withdrawing from the court. The witnesses for plaintiff were then called and examined, and “the defendant being called comes not,” says the record, and judgment was rendered for plaintiff. It thus appears that before the cause was submitted to the justice for trial, the defendant abandoned and left the court. He made no defence to plaintiff’s action, but suffered it to go by default, and before he had any right to appeal,'he should have moved to set it aside. In judgments by default, it is necessary to first file a motion to set them aside in order to give the appellate court jurisdiction Not having done so here, the circuit court had no jurisdiction of the case, and should have sustained plaintiff ’ motion. This is not like an appearance, which has the effect of waiving defects in service of summons, etc. An appearance in a cause may take place a great number of times before it-is finally submitted for trial, and yet. the party may abandon it and suffer it to go by default.
The judgment is reversed and the cause remanded with directions that the appeal be dismissed.
All concur.