McCollom v. Hogan

| Ala. | Jun 15, 1840

GOLDTHWAITE, J.

— The question presented in this case, is similar in principle to that decided by this court in Abercrombie v. Mosely, (9 Port. 145" court="Ala." date_filed="1839-01-15" href="https://app.midpage.ai/document/abercrombie-v-mosely-6529480?utm_source=webapp" opinion_id="6529480">9 Porter 145.) The only difference is, that in the case cited one issue was determined by the jury, whilst in this the pleas were wholly disregarded. We then slated the reasons which induced us to depart from some of the earlier decisions of this court on this matter of practice, and those reasons are equally forcible, whether applied to the state of the record in this or the other case. It is not possible to conceive that any defence to this case existed in point of fact, unless the defen. dants below were guilty of the most inexcusable negligence. We must infer that this suit was called as other suits, and that the defendants either were not present in person or by attorney; or if present, that they acquiesced in the judgment by default by waiving their pleas.

Furthermore, the judgment entry recites that the defendants said nothing in bar or preclusion of the plaintiffs demand. This is presumed to be the solemn act of the court, and certainly as much credit is due to it as to the mere recital by the clerk of the existence of certain pleas, which must have been waived, or the minutes of the court must recite a false fact.

We do not undertake to decide on the case presented, that a court is authorized to render a judgment by default or by nil (licit, when pleas are interposed within the proper period, though the defendant may afterward be passive; but the conclusiveness of such an entry as appears in this transcript can only be rebutted by a bill of exceptions (as was done in Gaston v. Parsons, 8 Port. 469" court="Ala." date_filed="1839-01-15" href="https://app.midpage.ai/document/gaston-v-parsons-6529446?utm_source=webapp" opinion_id="6529446">8 Porter 469,) or by some statement in the judgment entry, from which it may be legitimately inferred that (he pleas were neither waived, withdrawn, nor abandoned.

Let the judgment be affirmed.