The opinion
By the Court.
The rule must be made absolute. The court instead of dismissing the appeal, ought to have continued the cause and ordered a re-hearing. The effect of dismissing the appeal was not only to subject the appellant to the payment of costs, but to leave in full force, and thus in effect to affirm a judgment, from which the party had regularly appealed, without any decision on the merits of his case. Under the provisions of our statutes upon this subject, a regular appeal from the judgment of a court for the trial of small causes, effectually suspends, or rather supersedes that judgment; and the Court of Common Pleas must re-try the cause upon the merits, and give such judgment as the court below ought to have given.
Cited in Rodenbury v. Rosebury, 4 Zab. 493.