Appellants claim that the District Court erred in affirming the proceedings before the justice, because the justice erred in the following particulars: First. In sustaining defendant’s motion for a nonsuit, after plaintiffs had withdrawn their action. Second. In rendering judgment before the original notice was- returned, and when he had no jurisdiction; it not appearing that said notice was ever served. They also urge that the court erred in permitting the justice to certify the amount of the costs made before him.
This judgment must be affirmed. It could make no possible difference, so far as plaintiffs5 rights were concerned, whether the justice rendered judgment, as in case of non-suit, when they voluntarily withdrew their action, or whether it was rendered on the defendant’s motion. The consequences would be the same to them, in either event. So far as relates to the question of jurisdiction, and rendering judgment before the notice was returned, it is sufficient to say, that if the defendant voluntarily appeared, (as he did in this case,) it is immaterial whether any notice was ever issued, much less whether the one issued, was ever served. When the plaintiffs filed their petition, and the notice was issued, the magistrate had jurisdiction, as far as they were concerned, and though the defendant was not served, yet if he voluntarily appeared, the notice, so far as related to the
But it is said that plaintiffs were required to pay more costs than were taxed on the justices’ docket, at the time they dismissed their suit. This is true, and in this we think there was no error. They were bound for all the costs legally made in the case, and not alone for those that might at that time be taxed on the justices’ docket. They could not, by dismissing their suit, and paying costs before the return of the writs and process in the hands of the officer, avoid the payment of those costs made thereon. The District Court acted entirely within the sphere of its duty, in requiring the justice to certify the amount of costs made before him.
Judgment affirmed.