Walker v. Wills, 5 Ark. 166 (1843)

Jan. 1843 · Arkansas Supreme Court

5 Ark. 166

Walker vs. Wills.

Where demurrer is sustained to a plea, and leave is asked and granted to file another, which is accordingly filed, the first plea is abandoned; and the decision on the demurrer cannot be considered here.

A plea stricken from the files is no part of the record, unless incorporated in a writ of exceptions.

A statement in the record, that defendant agreed in open court that judgment might be rendered against him, is not a confession of judgment.

A note payable on demand, bears interest from date.

This was an a'ction of debt, determined in the Monroe Circuit Court in March, 1842, before the Hon. John C. P. Toleeson, one of the Circuit Judges. Wills sued Walker, on a note for $200, payable on demand. Walker pleaded want of consideration. Demurrer to to plea sustained, and leave asked and granted to file a new plea. He then filed an amended plea, which was stricken from the files, and was excepted, but did not embody in his exceptions, the plea stricken out. He then refused to plead further, and agreed in open court that judgment might be rendered against him. Judgment for $200 debt, $62 damages, and interest on debt and damages from judgment, with costs. The case came up by writ of error; and was argued here by Fowler, for plaintiff in error, and W. & E. Cummins, contra.

By the Court,

Paschal, J.

The plaintiff excepted, but did not copy the second plea, or so refer to it in any way as to make it a part of his bill of exceptions, or to preserve it on the record. Having therefore abandoned his first plea, and failed to make his second plea stricken from the files, a part of the record, we are left with nothing before us for consideration, but the declaration and the judgment. For although the second plea is copied into the transcript, yet we are not at liberty to consider it. We may passingly remark, however, that were we permitted to adjudicate on both pleas, we should say that they are wholly insufficient in law, to constitute a valid defence.

The record is made to say that, the “defendant agreed in open court that judgment might be rendered against him in this cause.” This is not a confession of judgment, and can only be regarded as a judgment nil dicit.

The question as to interest from date, on a note on demand, was settled by this Court in the case of Pullen vs. Chase, 4 Ark. Rep. 210.

The judgment is in strict form, and for the correct amount, and the error as to interest, if any there was, has been cured by remittitur.

Judgment affirmed.