1 Ala. 531 | Ala. | 1840
The terms used in the judgment entry, are as applicable to an ex parte hearing, as thejT would be to a consideration of a cause when all the parties were before the court. It is not improbable that the plaintiff may have been represented when the motion was heard, but this is not shown to be so by the record; the
As the main question has been very fully argued, and may be again presented, we deem it proper to consider its merits as disclosed by the record, and considered in argument.
We apprehend that a party who sues out a writ of error, has no pretext to call for reimbursement, for the cost and damages consequent on the affirmance of the judgment, from another who may be bound to pay the amount of the principal demand, if actually satisfied by the party suing out the writ of error. The right to delay a judgment is incidental to no contract, and if a party standing in the condition we have just stated, cannot recover the costs and damages paid by him, as money laid out for the use of the party liable to him for the principal demand,
If, it was admitted, the damages are incidental, it does not follow after the penalty has been incurred, that it can be discharged by the payment of the original demand by another party.
If the payment by another could produce such an effect, it would seem to be an absurdity, not to allow a payment, made by the party himself, to produce the same effect.
We are satisfied that the motion should not have been granted on the circumstances disclosed; the judgment of the circuit court is therefore reversed, and the cause remanded.