Barnard v. Irwin

PELHAM, J. — Tbe appellant complains that judgment by' default or nil dicit was rendered against him notwithstanding he had filed pleas in the cause in which the judgment was entered. The judgment entry set out in the transcript affirmatively shows that when the case was regularly called for trial the defendant did not insist upon his pleas, or otherwise defend the suit, and that, the defendant being called and making no response, judgment ivas accordingly rendered against him. The appeal is on the record without a bill of exceptions, and it may be assumed in support of the judgment set out in the record, nothing appearing in the transcript going to show that the pleas were insisted upon, or that the defendant offered, or even undertook to offer, any defense to the plaintiff’s cause of action, that the pleas were abandoned or waived. It has been held that a waiver or abandonment of pleas not verified by affidavit may be presumed when the transcript shows a judgment entered under such conditions and there is nothing in the record to show that the pleas were insisted upon. — Hutchinson & Wilson v. Powell, 92 Ala. 619, 9 South. 170; Schwarz v. Oppenheimer, Strauss & Co., 90 Ala. 462, 8 South. 36; McCollom & Chapel v. Hogan, Ex., etc., 1 Ala. 515. There is no material distinction in its effect and operation between a judgment by default and a judgment nil dicit. — Ex parte Parker et al., 172 Ala. 136, 54 South. 572. The record presents no reversible error, and the judgment of the court below will be affirmed. Affirmed.