Waller v. Sultzbacher & Paige

38 Ala. 318

• Court: Supreme Court of Alabama
• Decided: January 15, 1862
• Status: Published

Opinion

R. W. WALKER, J.

One of the conditions upon which the defendant obtained the. continuance at the fall term, I860, was, that if the costs'were not paid in ninety days after the adjournment of the court, the defendant’s plea should be stricken from the file, and the plaintiffs have judgment by nil elicit, with inquiry. The defendant did not question the right of the court to impose these terms, but accepted the same. The order of the court became thereby an agreement of record between the parties, and the defendant cannot complain thatit was enforced against him. The record shows that the costs were not paid within the ninety days; and accordingly the court did not err in striking the defendant’s plea from the file, and giving the plaintiff judgment by nil elicit. — See Gowen v. Jones, 20 Ala. 128; M. & W. P. Railroad Company v. Persse, Taylor & Co., 25 Ala. 537 ; Code, § 743.

[2.] The assignment of error relating to the exclusion of evidence on the execution of the writ of' inquiry, is not insisted on in the appellant’s brief, and we will not consider it.

Judgment affirmed.