This action was taken by appeal from a justice’s court to the circuit. The appeal was there dismissed for the sole reason, as it appears, that the plaintiff failed to prove any cause of action. This was improper, the appeal itself having been regularly taken. It is true, it would be immaterial to the plaintiff whether his appeal was dismissed or judgment given against him on the merits, if it could be assumed that he did not wish to litigate the matter further. But this cannot he assumed. And where the appeal is dismissed, his appeal from that order does not bring up for review the merits of the case, hut only the question whether the appeal had been regularly and properly taken. It is obvious, therefore, that with reference to a review it is quite material to the plaintiff, whether his appeal is dismissed or judgment given against him on the merits. This has been several times decided by this court.
By the Court. — The judgment of dismissal is reversed, and the cause remanded for further proceedings.