This action is brought into this court by appeal from the judgment of the court of common pleas ordering it to be dismissed. It is properly here in that way, because the matter of law upon which that judgment was founded is apparent upon the record. St. 1840, c. 87, § 5. In this material particular it differs entirely from the case of Cushing v. Field, 9 Met. *555180, on which the defendant relies in support of his objection that no appeal lies from a judgment dismissing a suit. It is true that that language was used by the chief justice in giving the opinion of the court in that case, but he used it in reference to the facts and peculiar circumstances which were then before the court And, so applied and limited, the statement was perfectly correct. The defendant pleaded to the action, the plaintiff replied, and then followed the order of dismissal, without its being stated in the record for what cause it was made. And it was because the matter of law was not apparent on the record, that it was said in general terms that an appeal from the judgment dismissing the suit did not lie.

This action was never withdrawn from the jurisdiction of the justice of the peace before whom it was brought and prosecuted. He had rendered no judgment in it, and it was still pending before him, when an appeal to the court of common pleas was claimed and taken by the defendant. But that appeal was wholly ineffectual, because no party can appeal from any of the proceedings of a justice of the peace, in a civil action, except his final judgment. Rev. Sts. c. 85, § 13. As this appeal was inoperative and void, the proceeding was properly dismissed in the appellate court, on motion of the defendant.

But though his motion prevailed, he was not the prevailing party. He had carried into the court of common pleas a case which he claimed to be an appeal, but which he had no right to prosecute, and which he could not possibly sustain. Failing so to do, he was not entitled to judgment for his costs. They should, on the contrary, have been awarded to the plaintiff, as the prevailing party.

The judgment of the court of common pleas, therefore, dismissing the appeal, is affirmed; its judgment gi/ing costs to Palmer reversed; and costs are to be awarded to Bowler.