The plaintiff instituted this action on the 15th day of July, 1889, by filing a complaint with a justice of the peace, and alleged, with other facts, that he was the owner of the room described, and entitled to its possession; that the tenancy was at will; that he had terminated it by notice to quit served one month before the first day of the month in which he instituted his suit; and that the defendant unlawfully detained possession. To this complaint the defendant filed his answer, in which he admitted that the lease was verbal, and for a longer time than one year, but denied the other allegations of the complaint; and as a further and second defense, the defendant alleged that he went into possession on the 1st day of July, 1888, under a verbal lease, and made valuable and - lasting improvements on the room, with the expectation that he was to hold possession of it until February, 1891, and he also práyed for affirmative relief, and for a removal of the case to the district court. The question of removal was argued and submitted, but, before decision, plaintiff stated to the court that he would abandon its prosecution, and entered a motion to dismiss; and the justice, without the consent of the defendant, allowed the motion and ordered its dismissal. From this ordei1, the defendant appealed to the district court; and, on motion of the plaintiff, that court, the defendant objecting, dismissed that appeal. From the order the defendant appealed to this court, and assigns the granting thereof as error.

*503The statute provides that an order of dismissal may be entered in a justice court when the plaintiff voluntarily dismisses the action before it is finally submitted (Comp. Laws Utah 1888, § 3595) and division 1, section 3343, Id., provides that an action may be dismissed by the plaintiff at any time before trial upon the payment of costs, if a counter-claim has not been made, or affirmative relief sought by the cross complaint or answer of the defendant. The facts stated in the answer are not sufficient to constitute a counter-claim, or to entitle the appellant to affirmative relief. It follows that the order of the justice dismissing the suit was correct, and that the judgment of the district court appealed from was not erroneous.

Judgment affirmed.