Davis v. McCampbell , 37 Ala. 609 ( 1861 )

STONE, J.

As-a motion 'has been made in this case to dismiss-the appeal,-for want of security for-eosts, we fee] bound to respond to it. ’ The appeal was taken • from the judgment of the circuit court, dismissing the -supersedeas. That judgment was rendered against J. L. Davis, and M. . J. Turnley, his surety ea the supersedeas bond-j the judg-ement being against both-of’them. M. J. Turnley is "the only surety for costs of-the-appeal to this court. Being 13 party to the judgment appealed from, 'the execution "by Mm of the obligation intended as a security for costs, is -not a compliance with section 3041 of the 'Code. -There is-no security for costs, and 'the*appeal-must be dismissed,

The-appeal, however, may be amended, or a"new appeái may be prosecuted, as two’years have not elapsed since the judgment appealed from was pronounced. We wall, therefore, dispose of the merits of-the-case.

[2.} We do not think the case-made by the petition for supersedeas is’within section 2407 of the Code. That section provides forra written release or-discharge of the claim sued on. It contemplates a case where the'release operates directly on the cause’of action which is the subject of ’the suit. It does not reach’ a case like the present, where the lost paper only tends to show that- the note, which is the foundation of the action, was executed in 'mistake, and, to . a certain extent, without consideration. If the papers relied on in the presentiapplication are worth anything, their -value consists in the fact- — not that ‘they are a release or ..discharge of the claim-on'whicli judgment was rendered— ■but that such claim neverha'd a'valid existence. For such cases section 2407 of the Code makes no provision.

[3.] The appellant’s -case, then, must stand or fall on section 2408 of the Code. That section ‘gives a right to a rehearing, at any time within four months after judgment, “ when a party has been prevented from making his defense, by surprise, accident, .mistake, or fraud, without fault on his part.” The jiidgmentdn the present case was rendered on. confession... To relieve himself from this record acknowledgment of the justice of the claim, the appellant shows in his-proof that 'he had made application to the circuit, court for a continuance of the suifagainst him, and that the circuit court required him, as a condition on which he would grant the continuance, to confess judgment for one hundred'and seventy-five dollars, part of the claim sued on. This ’plain fact proves, that the circuit court adjudged the showing for" a continuance, as to that sum, to be insufficient. The appellant thereupon accepjied the terms, and confessed, the judgment.* This transaction ■had all the elements of a contract by matter of record,' and the appellant cannot be relieved of it in a proceeding under section 2408 of the-Code. We. hold that, by a -judgment confessed, under the circumstances disclosed, in this record, the party estops himself from afterwards litigating the matter, to -the extent confessed ; unless, perhaps, he mighty in.another forum, show that the.cicf of confession was procured from-him by fraud. •

Nor can we- perceive, by anything- -apparent:on this record, that the appellant has been materially injured by the judgment which the law pronounces on his acts. He claims a credit,, on. 18th October, 1853, of $180 59 ; he obtained a- credit, according to his own showing, of $180 .on the same account, hut-dated October 19th, 1853. He -claims a credit of $71 -63,.taxes paid; .he received a credit of $70.

Appeal dismissed.