| Tex. | Dec 15, 1849
This suit was brought before a justice of the pence on an open account, and the plaintiff failing to appear on ihe day of trial, judgment of nonsuit or dismissal was entered against him for want of prosecution. An appeal was taken to the District Court, and this being dismissed for want of jurisdiction, the causo has been brought to this court for revision.
The grounds on which the District Court determined that it had no jnrisdiction are not set forth in the record, and the only question presented for our consideration is whether there is error in the judgment of dismissal. The law authorizes appeals from final judgments of justices of the peace; and judg ments of nonsuit for want of prosecution may.be termed final, but only in the qualified sense of inhibiting farther proceedings on the cause of action in that particular suit, and not as in any degree adjudicating the merits of the case. Ho decision is made on the facts or upon the law as applicable to a solitary fact involved in the controversy. The determination is extraneous to-the merits. It is in effect a mere ruling that, as the party lias been guilty of neglect, lie shall not proceed further until the costs already incurred are paid.
It is true, that appeals from magistrates are to be tried de novo; but this includes the supposition or idea that there lias been a previous trial, and judgment rendered upon that trial.
There is a difference between a judgment by default against the defendant and one of dismissal against the plaintiff for want of prosecution, in this : that the former, if not appealed from, is conclusive of the rights of the parties; whereas by the latter the rights of neither party are affected, and a new suit may be maintained on the subject-matter of the” former action. There is but one contingency under the law of 1840 on which an appeal from a magistrate’s judgment of dismissal may bo prosecuted, and that is where the action is founded on a written contract for money. The justice is in that event to proceed with the trial and determine according to the right of the canse. A judgment of dismissal would then be contrary to law. The magistrate could then and should determine upon the merits of the ease; and Iiis failure to do so would be erroneous and good ground for appeal.
Judgment affirmed.