This action was commenced before a justice of the peace, and from the judgment rendered by the justice against plaintiff in error an appeal was taken to the Circuit Court. An affidavit of claim was filed by defendant in error in the justice court, in accordance with the provisions of Sec. 34, Chap. 79, B. S., and said affidavit of claim was sent up to the Circuit Court, with the transcript and other papers in the case.
At a term of the Circuit Court, after the court had obtained jurisdiction of the parties by appearance and of the subject-matter, but before the case was readied for-trial, a judgment was taken against plaintiff in error by default, for want of an affidavit of merits, on the theory that the affidavit of claim tiled before the justice authorized such judgment. The practice adopted is claimed to be warranted by the last clause of the section of the statute above cited, which provides, “ that jn case of an appeal from the judgment of the justice of the peace, as aforesaid, such affidavit shall have the same force and effect in the appellate court as if such suit had been commenced in such appellate court.”
We considered and construed such provision of the statute in the case of Martin v. Hochstadter, decided at the present term of this court (ante, p. 166], and there held the practice here complained of was not warranted by law.
The views of this court are fully set forth in the opinion of Mr. Justice Garnett, and need not be here repeated. The entry of the judgment as by default was erroneous, and the judgment will be reversed, and the case remanded to the Circuit Court.
Reversed and remanded.