Gowen v. Jones

20 Ala. 128

Opinion

LIGON, J.

Under the view taken of this case by a majority of the court, it will be needless to examine whether the question involved was rightly raised in the court below, by motion to strike the case from the docket, or under the plea of the former recovery, as they hold it could not avail the plaintiffs in error in either form.

The case of Henderson v. Henry, 6 Ala. Rep. 361, is considered as having settled the practice in this State, as it was ruled in the court below; and doubtless, under the authority of that case, a practice, which, at the time of that decision, was only partially indulged, has now become general, and great mischief might result from changing it.

I must confess, however, that I have looked in vain for a precedent, or an authority, to sustain it, and I have but little favor for a judgment confessed to procure a continuance of part of the cause, or the imposition of such terms, by the courts at nisi prius, as conditions for their favors.

I regard the able arguments of the Chief Justice and Mr. Justice Parsons, against this practice, in the case of Edwards v. Lewis, 18 Ala. Rep. 494, as unanswerable, and as leading to the only correct legal conclusion on the subject. But as a majority of my brethren hold the contrary, and think the court below had the power to require a confession of judgment, as to part of the demands due on, and to continue the case as to the remainder, the judgment of the Circuit Court must be affirmed.