McKinnon v. Horn

Calhoon, J., delivered the opinion of the court. Horn and another, partners as Horn & Co., sued McKinnon on an open account before a j ustice of the peace. There were two mistrials before the justice of the peace. On the third call for trial, the defendant, McKinnon, was present demanding trial, but the plaintiffs were absent, and their suit was dis [308] missed by the coart a,t their costs. They appealed to the circuit court, which overruled McKinnon’s motion to dismiss, and this is assigned for error. It is insisted that Horn & Co. could not appeal, but that their only course was to sue again before the justice of the peace, because there was no trial on the merits. We cannot concur in this view. There was a final determination of that particular suit, and appeal was admissible. Gill v. Jones, 57 Miss., 367-370. The verdict for Horn & Co. was • clearly right, and there is no error of law. Affirmed.