On consideration whereof, it is ordered and adjudged by this court that the judgment of the said circuit court be and the same is hereby reversed with costs, it not appearing from the record that the court of common pleas erred in dismissing the action without prejudice, and this court proceeding to render the judgment which the circuit court should have rendered, it is considered and adjudged that the judgment of the said court of common pleas be and the same is affirmed. And it is further considered and adjudged that the plaintiffs in error recover of the defendant in error their costs in this behalf in this court and in the circuit court expended.