Radcliff filed a claim before the commissioners of DeKalb county, which was allowed. Ralston, on affidavit and bond filed, appealed to the circuit court, from the order of allowance. In the circuit court the case appears to have been wrongly docketed as Samuel W. Ralston v. John F. Radcliff A bill of exceptions, signed by the judge of the circuit court, shows that when the case was. called for trial in that court, “ Radcliff offered no evidence whatever, whereupon the said Ralston, by his attorney,.announced that they would offer no evidence, and thereupon the court dismissed.
This ruling was wrong. The case should have been dockected in the circuit court as Radcliff v. Ralston, should have been tried de novo, and if no evidence was offered, should have been decided on the merits for Ralston, the appellant.
The judgment is reversed, with costs, and the cause remanded. '
Worden, J., having been concerned as counsel in the cause, was absent.