Lyon, J., delivering the opinion.
This being a personal action, that died with the person, when a judgment was had at common law, from which an appeal was taken, under the statute for trial by special jury, and when the defendant died pending and before, trial on the appeal, the question made is, whether the common law judgment died with the action ? We hold tha!t it did. The appeal takes up the whole record, and anything and everything that carries the case out of Court, pending the appeal, disposes of all its incidents, and the rights acquired by the' ac- • tion. “ The appeal opens the whole case — it reviews the litigation before the appellate tribunal. When it reaches that tribunal, the case is before it in its totality. When an appeal is entered there is no judgment. Whether there ever will be a judgment or not for the plaintiff, depends upon the event of the trial on the appeal.” Snelling vs. Parker, 8 Ga., 123.
Let the judgment be affirmed.