delivered the opinion of the court.

The plaintiff and appellant has prayed the dismissal of the appeal, on the ground that by his petition it appears that he sues for himself personally, and the judgment is rendered in favor of John Hagan & Co., who are in no manner interested in the suit; and he has added a prayer, that if the appeal be not dismissed the judgment may be reversed, and the case sent back for further proceedings.

It appears to us that the appeal ought not to be dismissed on the ground relied on. If the first court erred in giving judgment to the injury of the plaintiff and appellee, the law has pointed out a mode by which he may be relieved in this court.

As he has prayed for the reversal of the judgment, and *527the defendant and appellant has joined in this prayer, we must reverse it; as to affirm it, would be to grant to the plaintiffs and appellants something ultra petitione.

He has not prayed us to amend it, but to remand the case; but he has not urged any thing which authorises our acceding to his request.

The defendant and appellant has prayed our judgment in his favor. We have carefully looked over the record, and it does not appear to us that the plaintiff has made out his case by proof.

It is, therefore, ordered, adjudged and decreed, that there be judgment for the defendant and appellant, as in case of non-suit; the plaintiff and appellee paying the costs in both courts.