¶1This is an action on a promissory note made by one Henry Boggs, payable to the order of John B. Kaiser, defendant, in the sum of $56, bearing ten per cent interest and indorsed by said Kaiser to plaintiff*. The suit is against defendant as indorser. Presentment, demand and dishonor of the note are alleged in the petition. It is also averred that the maker was insolvent, and that a suit against him would be unavailing, and that the defendant, with a knowledge of all these facts, promised to pay the note.
¶2The defendant, in his answer, denies the allegations of the petition, and pleads a judgment in his favor against the plaintiff on the same note as in bar of the suit. The new matter in bar is put in issue by replication. No instructions were asked or given. At the close of the evidence' the defendant interposed a demurrer as it were to the evidence, claiming that it failed to establish the case alleged in the petition. Judgment was rendered for plaintiff.
¶3*435On the merits of the prima facie case alleged by the plaintiff, the evidence supports tlie judgment. The evidence tends to prove that the defendant, after a full knowledge of the facts attending the dishonor of the note, admitted his obligation to pay it, and gave in excuse only his inability to do so. The evidence sustains the waiver of diligence pleaded in the petition. The evidence given in support of the plea in bar by reason of a former judgment, does not sustain the plea. It seems that the plaintiff brought suit in 187*7 against the defendant on the same note before a justice of the peace, and that the trial resulted in a judgment for defendant. The plaintiff appealed in due time. The appeal was taken more than ten days before the May term of the circuit court, 1877. Notice of the appeal was not served till within three days of the December term, 1877. The defendant appeared at said term and moved for an affirmance of the judgment. While the motion was pending the court permited the plaintiff to take a nonsuit of his case, and a judgment of nonsuit was entered. Such a judgment does not constitute a bar to another action. Under our practice the plaintiff, on appeal from a justice’s court, has always been accorded the right of dismissing his suit and thereby vacating entirely the judgment before the justice. Turner v. Northcutt, 9 Mo. 252; Moore v. Otis, 18 Mo. 118; Town of Carrollton v. Rhomberg, 78 Mo. 547. Therefore the judgment of the justice constitutes no bar, it having been vacated by the appeal and dismissal of the suit. There was no irregularity in the court permitting the dismissal of the suit at the time it was done. The appeal had been perfected and the court had jurisdiction of the cause. The necessity of a notice of the appeal relates to the time when it becomes triable as against the appellee. The court being possessed of the case, no mere irregularity in entering its judgment could be impeached in a collateral proceeding.
¶4The judgment is affirmed.