Seevers, J.
The plaintiff commenced .this action before a justice of the peace, and claimed to recover $40. There was a trial, and a judgment was rendered by the justice in favor of the plaintiff for $24. The defendant appealed to the circuit court, and, on motion of the plaintiff, the appeal was dismissed on the ground that the amount in controversy was less than $100; and the trial judge has, in substance, asked *474us to determine whether the appeal was correctly dismissed. The statute provides that “ any person, aggrieved by the fínal judgment of a justice may appeal therefrom to the circuit court in the county. But no appeal shall be allowed in any case when the amount in controversy does not exceed $25.” McClain’s Code, § 3575. When the action was commenced and tried by the justice, the amount in controversy was $40. If the plaintiff had appealed, as he might have done, the amount in controversy would have been the same. If the plaintiff could appeal, it would seem that the defendant should have such right, for it is reciprocal. An appeal from the judgment of a justice, by either party, “ brings up a cause for the trial on the merits.” Code, § 3590. On the trial of this appeal in the circuit court, the plaintiff, under the pleadings, could have recovered a judgment for $40. By appealing, the defendant recognized the right of the plaintiff to such a judgment, and we therefore think the amount in controversy exceeded $25, and that the court erred in dismissing the appeal.
Beversed.