McCall Co. v. Smith

Wood, J., (after stating the facts). The only question presented by this appeal, is whether or not the record of the justice of the peace, stating that “ at the suggestion of plaintiff’s attorney the jury returned a verdict for the defendants” showed on its face, a judgment by consent. (1) The error, if any, appears on the face of the record, and it was not necessary, therefore, to have a bill of exceptions in order to have the ruling of the trial court in passing on the motion to dismiss, reviewed. (2-3) The recitals of the justice’s record are not sufficient to show a judgment by confession or consent. Of course, a judgment by confession or consent could not be appealed from. Saleski v. Boyd, 32 Ark. 74; Cave v. Smith, 101 Ark. 348. But, at most, the recital under review only showed that the appellant’s attorney, when the evidence offered by him was excluded by the court, suggested that the jury return a verdict for the appellant. This suggestion of the appellant’s attorney was but tantamount to an admission on his part that, since the evidence offered fo .sustain .appellant’s claim was excluded by the court, it could not recover in that court, •and in view of this ruling the verdict would necessarily have to be in favor of the appellees. This admission upon the part of .appellant’s attorney was far from a confession on his part that the appellees were entitled to a judgment or that he was consenting for a judgment to be entered against the. appellant. The record further shows that on the same day that this judgment was entered the appellant “filed an affidavit for appeal to the circuit court.” (4) Taking the recitals of the record altogether it can not be said that they show that the judgment entered by the justice of the peace was on confession, or by the consent, of the appellant. The word suggestion is neither synonymous with confession nor consent, and before a judgment should be treated as one rendered on confession or consent the recitals showing such confession or consent should be clear and unequivocal. Such is not the case here. Where “defendant agreed in open court that judgment roight be rendered against him,” we held that such recital was not a confession of judgment and could only be regarded as a judgment nil dicit. Walker v. Wills, 5 Ark. 167. The court therefore erred iu dismissing appellant’s appeal from the justice court, and the judgment is therefore reversed and the cause remanded with directions for further proceedings according to law.