Ob Re-heabibg.
Ellison, J.When this cause was considered by the court in the first instance, our attention was not called to the decision by the St. Louis court of appeals, in the case of The Singer Manufacturing Company v. Sennet at., the syllabus of which is given in the Seventh Missouri Appeal. We have been furnished with a copy of the opinion in that case, and find the point made in this case does not appear to have been raised or considered in that.
The summary judgment seems to have been treated as valid, all’round, and the cause went ofi, as best we can gather, on the question as to whether a motion to set aside an order of dismissal was filed in time, and that the objection that damages on the bond were not assessed by a jury, was not saved by a motion in arrest of a summary judgment against the sureties, or otherwise.
It does not appear that the question was considered by the court or counsel; we do not regard the opinion as a precedent, further than the point considered and decided. As to this case, we reiterate that, as a summary judgment against the sureties is authorized by the statute, on a statutory proceeding, if such proceeding is void, so that the justice of the peace nor the circuit court on appeal have no jurisdiction over the subject matter, there can be no summary judgment rendered under the *448statute. The party is remitted to Ms ordinary action at law on tlie bond.
The motion is overruled.
All concur.