Cave v. Smith

142 S.W. 508, 101 Ark. 348, 1912 Ark. LEXIS 332

• Court: Supreme Court of Arkansas
• Decided: January 1, 1912
• Status: Published

Opinion

Hart, J.

This suit was brought in a justice’s court by T. J. and A. W. Smith against D. W. Cave to recover $13.50 alleged to be due on account. The judgment of the justice, after stating the fact that both parties were present in person, recites: “And the defendant acknowledged service of the summons, and without any further proceedings the defendant asked the court to enter judgment against him for said sum sued on $13.50, and then filed affidavit and bond for an appeal to the circuit court,” etc.

On motion of the plaintiffs, the circuit court dismissed the appeal, and 'the defendant has appealed from that judgment.

It is contended by counsel for defendant that, under the authority of Walker v. Wills, 5 Ark. 166, the record of the justice does not show a judgment by confession; but we can not agree with them. In that case the defendant pleaded want of consideration to the note sued on and a demurrer to the plea was sustained. He then filed an amended plea, and it was stricken from the files. He then refused to plead further, and agreed in open court that judgment might be rendered against him. The court held that this was not a confession of judgment. The reason evidently was that the defendant was relying on his plea already made, and only meant to say that he had no further defenses to make. Here the case is different. The defendant entered his appearance, and, without interposing any defense whatever, asked the court to enter judgment against him for the amount sued for. This was a confession of judgment

It is next contended by counsel for defendant that under section 4665 of Kirby’s Digest he had a right to appeal from a judgment by confession. We do not think so. A party confessing judgment is estopped by his own voluntary act from questioning its correctness. Jeffries v. Morgan, 1 Ark. 169.

Section 4614 of Kirby’s Digest provides that the rules and proceedings governing confessions of judgment in the circuit court shall apply to justices' courts. And section 6251 provides that the confession shall operate as a release of errors.

The judgment will be affirmed.