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Joseph Burke, d. b. a. v. Carrie M. Silcox, p. b. r.
Pennewill, J.: In this case of Joseph Burke, d. b. a., vs. Carrie M. Silcox, p. b. r., which is an appeal from a judgment of a Justice of the Peace, the plaintiff below has made a motion to dismiss the appeal on the ground that the judgment given by 104 the Justice was a judgment by confession and that under the law no right of appeal is given in such cases.
In support of his motion the plaintiff below cites two authorities in our own Courts; one being the case of William A. Gum vs. William D. Adams, Assignee of Charles H. Richards, 9 Houston 200, and the other the case of John Dickinson vs. Peter Horn, 3 Harrington 496.
In the former case the Court held that no appeal would lie from a judgment rendered by a Justice of the Peace upon the confession of the defendant, and in the latter case the Court held that if a case was regularly before the Justice and the case stood for a hearing upon which the Justice was authorized to give judgment upon proof satisfactory to him, it was a valid judgment, whether on the admission of plaintiff’s claim by the defendant or on any other evidence.
But we think that the case before us can be distinguished from either of those cases.
It is true that the record in this case says, “And now to wit, this 6th day of- February 1906, the defendant and plaintiff both being present and the defendant acknowledging the debt, after hearing the proofs and allegations and maturely considering the same judgment is given,” etc. But even though we assume that the words “acknowledging the debt” are in legal effect a confession of judgment, yet it does not clearly appear that the Justice in this case actually rendered the judgment upon confession of the defendant, for the record says he heard the proofs and allegations.
We think that the Court should not deny to any defendant in an action before a Justice of the Peace an appeal, unless it is clear, under the law, that he is not entitled to such appeal; and not being clear that it is so in this case we refuse the motion to dismiss the appeal.