Stewart v. Betzer

Howedd, J". A motion is maclo to dismiss the appeal in this case on the ground that the judgment appealed from was rendered upon the confession of the defendant. Suit was instituted on a building contract, for a balance alleged to be due. The answer admitted an indebtedness for a much smaller sum, and contested the plaintiff’s right to recover any greater amount. On motion, judgment was rendered for the sum admitted, without prejudice to the right to recover the remainder, from which defendant appealed. The proceeding was regular, and the judgment was clearly based on the admission of the defendant, from which, under article 567 C. P., ho cannot appeal. Any admission of the claim, which leaves no issue to be tried in regard thereto, is a confession of judgment. 5R. 447; 9L. 415; 4 R. 44; 4 A. 407; 11 A. 740. It is therefore ordered that the appeal herein be dismissed, at the costs of appellant.