McNeil v. State , 71 Ala. 71 ( 1881 )

BRICKELL, C. J.

On error all reasonable presumptions are indulged to support the judgment of the primary court. The demurrers appearing of record do not seem to have been called to the attention of the Circuit Court, or any action upon them invoked. In this condition of the record it has been often held by this court, the presumption on error is, that the demurrer was waived. — 1 Brick. Dig. 782, § 134. The presumption in this case is almost, if not quite indisputable, for on the day of filing the demurrers, the present appellants confessed the judgment from which the appeal is taken.

The statute is express, that a confession of judgment is a release of errors. — Code of 1876, § 3945. The words of the judgment admit of no other construction than that the appellants consented to it—that they, not their attorneys, agreed, yielded assent to it. Consent removes or obviates mistakes or errors in the course of judicial proceedings. Consensus tollit errorem, is a conservative maxim of general application. If there be error in the judgment, the plaintiff and the Circuit Court were led into it by the consent of the appellants, a consent which involved an agreement on their part to waive,- not to claim or take advantage of the error. The consent can not be withdrawn, and the judgments reversed at the instance of either party.

Let the judgment be affirmed.