¶1Appellee sued appellant and the St. Louis & San Francisco Railway Company, on an account for thirty-three dollars and thirty-three and one-third cents, before one of the justices of the peace of Sebastian county, and judgment was rendered by default against both of the defendants. The railroad company, by its attorney, B. R. Davidson, took an appeal by filing proper affidavit and bond. The cause came on for hearing in the circuit court, the defendants having answered ; and, while testimony was being taken, “the court ruled that the filing of the affidavit in this cause did not vest the circuit court with jurisdiction as to Rider, (to which he excepted); and said Rider moved the court to require the justice to amend his transcript to speak the truth by showing that Rider in person presented the justice with the affidavit for appeal herein made by B. R. Davidson, and prayed an appeal for both defendants ; that the justice accepted the same as applying to both defendants, and granted an appeal as to both defendants.” But the court refused to grant the rule on the justice, and dismissed Rider’s appeal. From this judgment of dismissal, this appeal is taken.
¶2Having gone into the trial without objection, the plaintiff, for whose benefit the appeal affidavit is required to be made, waived the defect, and the court should not, of its own motion, have dismissed the appeal.
¶3Reversed and remanded, with directions to set aside the judgment of dismissal, and grant appellant a trial of his cause.