On the 13th day of February, 1874, the plaintiff commenced an action against the defendant, before *44A. S. Camblin, Esq., a justice of the peace, to recover for stone taken by defendant from plaintiff’s premises.

On the 20th day of the same month, being the day prior to the return day of the notice, defendant, by his attorneys, appeared and made application for a change of venue on the ground of prejudice on part of the justice, and stating that the like objection applied also to Justice Walker, who was the next nearest justice in the same township. On the 21st (next day), the plaintiff and his attorney appeared; the defendant did not, and the justice sustained the application for change of venue, and by consent of plaintiff sent the cause to Truman Bacon, Esq., the third justice in the same township, who, on receipt of the papers, made the proper entries in his docket on the same day, and the plaintiff and his attorney then demanding a trial, the case was tried and judgment rendered for plaintiff in the absence of the defendant, and without any answer or defense being made or filed on his behalf.

Two days after the rendition of the judgment the defendant applied for an appeal and filed a proper bond with the justice, and on the next day, being the 24th day of February, 1874, he appeared before the justice and withdrew his application for an appeal, and made a motion, supported by an affidavit and oral testimony, given before the justice, to set aside the judgment and grant a rehearing of the case. This application was granted by the justice, and the 14th day of March, 1874, fixed for the re-trial of the case of which the justice gave due notice to the plaintiff. The plaintiff had no notice of the application to set aside the judgment. At the time of making his application to set aside the judgment, the defendant filed an answer denying generally all the allegations of plaintiff’s petition, and pleading a counter-claim against the plaintiff.

The ruling of the justice in granting the rehearing was the alleged error in the circuit court, and the action of the latter in sustaining the ruling of the justice is the ground of complaint in this court.

*45i. judgment: fault. *44I. Section 3543 of the Code provides that “ judgment dismissing the cause, or by default, may be set asido by the *45justice at any time within six days after being rendered, if

the party applying therefor can show satisfactory excuse.” ihere is no room tor doubt as to the character of the judgment in the case. It is a judgment by default. The defendant had applied for a change of venue the day prior to the return day of the notice, but he neither appeared nor filed any pleading on the day of the trial before Justice Bacon. No other judgment could be properly rendered against him than a judgment by default. Code, section 2869; McFarland v. Lowry, 40 Iowa, 467. It was held in the case cited that when a defendant appears in an action before a justice of the peace and fails to plead, judgment by default is entered against him, and that on appeal to the Circuit Court the defendant may there plead to the action. See Code, section 3596. The justice, therefore, had power to set aside the judgment by default under the section of the Code above set out, and, under section 3544, he ivas authorized to fix a new day for the trial, and notify the plaintiff thereof.

No notice is required to be given of the application to set aside the judgment by default. Stivers v. Thompson, 15 Iowa, 1.

3__.wi16n mafbe’set aside. II. It is next urged that the defendant could not apply for, and the justice could not grant, an order setting aside the judgment after an appeal had been taken and bond filed. If the papers with the justice’s transcript had been sent up in pursuance of the appeal and filed in the Circuit Court, it might be doubtful whether or not the defendant could have the judgment set aside by an application to the justice for that purpose. But in this case, the application was made the next day after the. appeal was taken, before the justice had certified or sent the case up, and the defendant expressly withdrew his appeal. Whether he could, by so doing, withdraw the appeal bond so as to deprive the plaintiff of the security it afforded, we need not determine, since that question is not involved in the case. But we do think that the appeal may be withdrawn as it was done in this case. There is certainly no stage in an action when a party may not stop proceedings instituted by him, *46and waive the right to proceed further. After having withdrawn his appeal he could properly make his application to set aside the judgment rendered against him by default.

III. It is next urged by appellant’s connsel that the showing made by the defendant on his application to set aside the judgment was insufficient to justify the action of the justice.

4___._. discretion. . It was held in Stivers v. Thompson, 15 Iowa, 1, that the Supreme Court will not interfere with an order of this kind, made by a justice of the peace, if made within the t¡me prescribed by law, unless in a case of clear abuse of the discretion reposed in the justice. We are unable to find that there was any such abuse of discretion in this case

Affirmed.