¶1 The action was brought in Justice Court to recover the value of a cow. Defendant Campbell pleaded that a suit was then pending in the District Court between the same plaintiff and defendant which involved the same subject. This plea was sustained, and plaintiff appealed. After the appeal, and before trial in the County Court, the suit in the District Court was dismissed. Defendant interposed the same plea, which was sustained. The reason advanced in support of this ruling is that the matter was jurisdictional, and that the abandonment of the cause which was pending in the District Court, not having been taken until after the appeal from the justice’s judgment had been perfected, the County Court had no more power to proceed to judgment than the Justice Court had when it acted.
¶2 We are of opinion that the court erred in sustaining the plea. The matter was not jurisdictional. The statute authorizes this character of plea, and if it had not been interposed, and the justice had rendered judgment for plaintiff, there could be no "question of the validity of the judgment. If the proceeding on appeal had been revisory merely, the judgment rendered by the justice would have been affirmed, because he committed no error under the conditions that then existed. But on appeal from such judgments the trial is de novo. Hew issues may be heard and determined. If the plea had not been made before the justice, it could nevertheless have been filed in the County Court. The appeal, when perfected, did not suspend the judgment merely, but dissolved it, and the proceeding in the County Court was, so far as this pleading was concerned, virtually a continuation of the suit.
¶3 Reversed and remanded.