Currier, to the use of Marshall, brought an action against Shaffer before a justice of the peace, which resulted in a judgment in favor of the latter for $30. Currier prosecuted an appeal to the Circuit Court, where the cause was tried, and a verdict returned in favor of Shaffer for five cents. A new trial was granted on his application. The Court then sustained a motion made by Currier, to dismiss the suit at the costs of Shaffer. The judgment for costs against Shaffer was clearly erroneous. Currier being the plaintiff", had an undoubted right to dismiss the suit, but it should have been done at his costs. If a plaintiff voluntarily abandons his case, he must be adjudged to pay the costs. He is not entitled to a judgment for costs against the defendant, until he has successfully prosecuted the action to final judgment against him. The judgment before the justice was opened by the appeal, and, as a matter of course, fell with the dismissal of the case.
The judgment for costs must be reversed, and the cause be remanded to the Circuit Court, with directions to enter a judgment against Currier for the costs of the case.
Judgment reversed.