¶1By the Court.
¶2This action was commenced before a Justice of the Peace by the Defendant in Error against the Plaintiffs in Error, under the Statute “ of Forcible Entries and Detainers.” Rev. Stat. Chap. 87.
¶3The complaint before the Justice was manifestly and fatally defective, and the summons issued by him, was not served in the manner prescribed by the Statute.
¶4Hie Defendants below did not appear before the Justice and the Plaintiff there proceeded to a hearing. Hpon that hearing the Justice rendered judgment against the Defendants, for restitution, for a fine of thirty dollars and for costs.
¶5From that judgment the Defendants appealed to the District Court.
¶6In the District Court the Defendants moved that the pro. ceedings and judgment before the- Justice be quashed with costs. That motion was overruled by the Court and the Defendants excepted.
¶7The Plaintiff below then moved that the cause be dismissed. That motion was resisted by the Defendants who insisted that they had a right to have the cause tried in its order upon the calendar. The Court, however, dismissed the cause and proceedings and the Defendants excepted, and thereupon brought their writ of Error to this Court.
¶8Though the District Court may have erred in overruling the motion to quash the proceedings and judgment before the Justice, the error was cured by the subsequent dismissal of the cause and proceedings on motion of the Plaintiff below.
¶9When an appeal from the judgment of a Justice of the Peace is properly taken, and a return thereto is made, the whole proceedings before the Justice become mer&lis ¡pendens in the District Court. Rev. Stat. 316, Chap. 69, § 127; 4 *182Denio’s R., 377, note b. The parties stand in relation to each other there, the same as they did at the commencement of the trial before the Justice. Being in this position before the District Court, the Plaintiff there has the right to submit to a non-suit, or in the language of the code, “ dismiss the action at any time before the trial,” the same and as fully as he had previous to the trial before the Justice. Such dismissal in the District Court has the same force and effect as if taken before the Justice previous to the trial there.
¶10"When the Plaintiff in the District Court dismissed the “ cause and proceedings,” he dismissed the action and not merely the appeal. Every thing from, the commencement of the proceedings before the Justice was thereby vacated, and the “proceedings and judgment before the Justice ” were, in the language of the motion of the Defendants below, quashed effectually.
¶11There having been neither any provisional remedy allowed or any pleading on the part of the Defendants below, in the case, the Plaintiff below had the absolute and Statutory right to dismiss the action without the leave of either the Court or the other party. Rev. Stat. 349, Chap. 70, § 162, Sub. Div. 1. Consequently, though the order of the dismissal be final, I am at a loss to perceive how a writ of Error thereon can be maintained by either party. The Plaintiff below could not bring such writ, because the order is against him on his own voluntary motion. The Defendants below cannot do it, because the order disposes of the whole case in their favor. Had the Defendants below asked for and been denied a judgment against the Plaintiff below, for their costs, their right to a writ of Error would be very questionable, because upon a writ of Error, the judgment below cannot be merely' modified, but must be affirmed or reversed in toto unless it be composed of distinct parts, some of which may be affirmed and others reversed. The Defendants below could not, upon a writ of Error obtain a judgment for the costs in the Court below. That could only be done by motion to that Court, and if refused, by appeal to or mandamus from this Court.
¶12Upon the Plaintiff’s dismissal of the action in the District Court, the Defendants were entitled to a judgment for their *183costs, and I liave no doubt but that the District Court had jurisdiction of the parties sufficient to enable it to render and enforce such judgment; but it does not appear that the Defendants below asked for such judgment, or that it was denied.
¶13Diere is no such exception upon the record, and if there had been, it would not, in my opinion, have been effectual to sustain the writ.
¶14As the case stands, I do not see how this Court can either affirm or reverse the said order of disposal, consequently the writ of Error in this case, should, in my opinion, be dismissed with costs.