Meaher v. Tindal , 41 Ala. 385 ( 1867 )

JUDGE, J.

Only the third and fourth assignments of error are insisted upon by the appellants, which are — that the evidence in the cause is not set out in the second, and that there is error in the decree. It is recited in the decree, that the stipulators, “ being publicly called, came not, neither in person, nor by proctor;” and it-does not appear that they ever answered the libel. Being thus in contumacy and default, a decree pro confesso might have been taken against them.—3 Greenleaf’s Ev.§ 398; 2 Conkling’s Adm. Pr. 177-178. If such a decree was not entered, pro forma, the court did in effect what it had the right to do, under.the circumstances, viz., it proceeded to hear the cause ex parte, and to adjudge therein as it seemed to the court law and justice required.—2 Conk. Adm. Pr. 178. If evidence was taken by the court, other than such as would necessarily result from a decree pro confesso, it was not necessary, under the circumstances, to set it out in the record; and if it were, we would not reverse for the failure to do it, the record showing a substantial cause of acoion, and the question not having been raised in the court below.

There is no error in the decree, of which the appellants can complain, and it is consequently affirmed.