Pearce v. Daughdrill , 54 Ala. 456 ( 1875 )

BRIOKELL,.C- J.

It is not insisted that the appellants, by mistake, or inadvertence, or by the fraud of appellee, made the agreement by which they procured the vacation of the first final decree against them, and were let in to make defense. Nor is it insisted the counsel representing them had not full authority to 'enter into the agreement. The benefits of the agreement they had obtained by the setting aside of the decree, and it was the duty of the court to compel them to an observance of it. The answers they introduced into the files, so far from conforming to, were in violation of the agreement. They were not subject to exceptions for insufficiency, or other cause. They were objectionable on no other ground than because they were violative of the agreement by which the appellants had obtained the opportunity of answering, they had lost by the former decree against them. A motion to strike the answers from the files was a proper mode of carrying into effect the agreement.

The order of the court, made before the answers were filed, that the appellants answer by a specified day, did not relieve the appellants from the agreement. They had permitted the day on which they had stipulated to answer, to pass without answering, and the order served no other purpose than to notify them that they were in default, from which they could relieve themselves by answering on or before the time appointed. The matter to be embraced in the answers, remained that on which they had previously agreed with the appellee.

The failure of the appellants to answer in pursuance of the agreement, entitled the appellee to a decree pro confesso. That decree was rendered, and was succeeded by a final decree, in all respects regular. There is no error in the record, and the decree must be affirmed.