Lytle v. Colts

The opinion of the court was delivered,

by Lowrie, J.

The recency of the settlement of the amount due on the bond, saves it from the charge of antiquity; but, was there a valid judgment entered upon it ? Certainly not, for the record does not show a confession in any form. The maxim “ Omnia prcesumuntur,” is appealed to; but that does not apply in error to cure the very irregularity complained of, else it would vacate the principal functions of this court.

The objection below was, that there never was an appearance or confession of judgment on behalf of the defendant; and as the record shows none, the objection seems to be sustained. Why then was not the judgment set aside ? The maxim' “ Omnia prcesumuntur” was quite out place on the hearing of the motion in the court below, for it was not needed, since that court had power to make its records express every omitted fact. The answer ought to have been made, by satisfying the court that there really was a confession of judgment, and by having the record amended according to the fact. This not having been done, we must take the record as it stands, and on it we find nothing to sustain the judgment. Surely it is expecting too much, when we are asked not only to overlook irregularities in form, but to dispense with forms, and to presume that a judgment was confessed because it might have been, and was intended to be.

Judgment reversed and record remitted.