Maund v. Loeb & Brother , 87 Ala. 374 ( 1888 )

CLOPTON, J.

The continuance of a case is in the discretion of the court, and such terms may be imposed, under the rule of practice, as to the court may seem proper. At the Fall térm, 1888, of the Circuit Court, defendant obtained a continuance, upon payment of all the costs as a condition precedent, to be paid in ninety days, or judgment to go against him at the next term. The costs were not paid until the first day of the next term, and after the case was called for trial, which was more than ninety days from the time of the order. Defendant having applied for, obtained, and accepted the continuance, we must infer that he consented to the terms upon which it was granted. It was no excuse, that an itemized bill of costs had not been furnished, when it is not shown that defendant offered to pay the costs, or applied for such bill; and the court was not bound to accept payment after the expiration of .the prescribed time, as a compliance with the condition upon which the continuance was obtained. The court was authorized to render judgmentmi dicit against defendant. — Waller v. Sultzbacher, 38 Ala. 318.

But the record does not show that the judgment was rendered because of defendant’s failure to pay the costs. The judgment-entry recites, that defendant said nothing in bar or preclusion of the plaintiff’s demand. The defendant was in court, in person, and by attorney. No pleas appear by the record to have been filed, and none were offered to be filed. If necessary to sustain the action of the court, we would presume, from the recitals of the minute-entry, that judgment was rendered because defendant failed or declined to plead. After a judgment nil dioii in an action of trover, the only question to be referred to the jury, of which plaintiff is required to make proof, relates to the amount of damages. All the charges asked by defendant go to plaintiff’s right to recover at all, and were inapplicable, and properly refused.

Affirmed.