#### Conrad vs. Cole.

Where the defendant in a justice’s court went to trial without security for costs haying been required from the plaintiff, he must be deemed to have waived it.

It is error for the circuit court in such case to dismiss an appeal by the plain-

*546October 11.

tiff from the judgment of tbe justice, because security for costs bad not been filed in the justice’s court.

Where tbe record shows that a cause wns dismissed for want of jurisdiction, and shows also that the court had jurisdiction, it is not necessary that there should have been a bill of exceptions to enable this court to review and correct the error.

APPEAL from tbe Circuit Court for *Jefferson*County.

The case is stated by the court.

*Gerrit T. Thorn,*for appellant.

*Williams*& *Leonard,*for respondent.

*By the Court,*

Cole, J.

This action was commenced by the appellant before a j ustice of the peace. The parties appeared, put in their pleadings, and went to trial before a jury. The j ury, upon the evidence, returned no cause of action. The appellant then took an appeal to the circuit court. The circuit court held that it had no jurisdiction of the cause, and dismissed the appeal for that reason.

In looking into the record, we think it fails to sustain this objection. On the contrary, it appears that the subject matter of the suit was within the jurisdiction of the justice. The defendant was not only served with process, but appeared and made a successful defense to the action. The appeal to the circuit court appears to be regular and proper. We should then be at a loss to know upon what ground or for what reason the circuit court held it had no jurisdiction of the cause, were it not conceded by counsel on both sides to be because no proper security for costs was given by the appellant before the justice. We shall then assume, upon this record, that the appeal was dismissed because no proper se. curity for costs was filed before the justice. Was this a good ground for dismissing the appeal ? Or rather, was it a matter going to the jurisdiction of either the justice or circuit court? It appears to us very clearly that it was not. Let it be assumed, for the purpose of considering the objection, that the plaintiff was a non-resident, and that it was the duty of the justice to require him to give security for costs in conformity to section 21, chap. 120, and that none whatever was given ; still would this deprive the justice of jurisdiction of the cause? We think not. It is said the neglect to give this security for costs, is like omitting to make affidavit for an at*547tachment, and went to tbe jurisdiction of tbe justice. But tbis we deem an erroneous view of tbe matter. Security for . tbe costs was evidently a matter for tbe benefit of tbe defendant. Tbe object in requiring it in any case is, that tbe defendant may bavesome responsible party.witbin tbe jurisdiction of tbe court, to'wbom be can look for tbe payment of bis costs in tbe event be succeeds in tbe action. If be chooses to appear and go to trial without demanding security for costs or taking any objection to that which is given, be must be deemed to have waived it. It is certainly a defect or error which be may waive. Tbis is obvious. And ought be not to be held to have waived it, when be appears and goes to trial before tbe justice without making any objection that tbe proper security for costs is not filed? We think be ought. If security for costs bad been required before the justice, and tbe plaintiff bad refused or neglected to give it, tbe justice might have dismissed tbe suit. But when no objection is taken for tbe want of security, and the parties appear and go to trial, it must be deemed to have been waived.

It was suggested by tbe counsel for tbe respondent, that we could not consider tbis question, because no bill of exceptions was settled and signed, embracing tbe motion to dismiss and tbe ruling of tbe court upon it. It is not necessary to cause a bill of exceptions to be settled to enable us to review an error which appears upon tbe face of tbe record. Tbe record shows that tbe appeal was dismissed for want of jurisdiction, which excludes tbe idea that it was dismissed for any other reason. Tbe record shows clearly that tbe court bad jurisdiction of tbe parties and tbe subject matter of tbe suit. We therefore think tbe record shows that the cause was improperly dismissed.

Tbe order of tbe circuit court dismissing tbe appeal is reversed, and tbe cause remanded for further proceedings according to law.