{
  "id": 1564908,
  "name": "The McCall Company v. Smith",
  "name_abbreviation": "McCall Co. v. Smith",
  "decision_date": "1915-02-15",
  "docket_number": "",
  "first_page": "118",
  "last_page": "121",
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      "cite": "117 Ark. 118"
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    "id": 8808,
    "name": "Arkansas Supreme Court"
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  "analysis": {
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  "last_updated": "2023-07-14T17:56:14.924196+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "The McCall Company v. Smith."
    ],
    "opinions": [
      {
        "text": "Wood, J.,\n(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 \u201c at the suggestion of plaintiff\u2019s attorney the jury returned a verdict for the defendants\u201d showed on its face, a judgment by consent.\nThe 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.\nThe recitals of the justice\u2019s 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\u2019s 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\u2019s attorney was but tantamount to an admission on his part that, since the evidence offered fo .sustain .appellant\u2019s claim was excluded by the court, it could not recover in that court, \u2022and in view of this ruling the verdict would necessarily have to be in favor of the appellees. This admission upon the part of .appellant\u2019s 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 \u201cfiled an affidavit for appeal to the circuit court.\u201d\nTaking 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.\nWhere \u201cdefendant agreed in open court that judgment roight be rendered against him,\u201d 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.\nThe court therefore erred iu dismissing appellant\u2019s appeal from the justice court, and the judgment is therefore reversed and the cause remanded with directions for further proceedings according to law.",
        "type": "majority",
        "author": "Wood, J.,"
      }
    ],
    "attorneys": [
      "Cooke & Shouse, for appellant.",
      "8am Williams, for appellee."
    ],
    "corrections": "",
    "head_matter": "The McCall Company v. Smith.\nOpinion delivered February 15, 1915.\n1. Appeal and error\u2014error in face of record.\u2014Where the error complained of appears on the face of the record, it is not necessary to have a hill of exceptions, in order to have the -ruling of the trial count .reviewed on appeal.\n2. Judgments\u2014consent\u2014appeal.\u2014A judgment hy confession or \u00a1consent can not he appealed from.\ng. Judgments\u2014consent.\u2014The record of a justice read: \u201cThe evidence offered hy the plaintiff toeing held inadmissible hy the court, at the suggestion of plaintiff\u2019s attorney, .the jury returned a verdict for the defendant.\u201d On appeal to the circuit court, the \u00a1appeal was dismissed. Hel\u00e9, \u00a1the recitals of the justice\u2019s \u00a1record are not \u00a1sufficient to show a judgment toy confession \u00a1or consent.\n4. judgments\u2014confession or consent\u2014evidence.\u2014Before a judgment should he treated as one rendered on confession or consent, the recitals showing such confession or consent should be \u00a1olear and unequivocal.\nAppeal from Boone 'Circuit Court; George W. Reed, Judge;\nreversed.\nSTATEMENT by the court.\nSuit was instituted by the \u00a1appellant .against the appellees before a justice of the'peace to recover for an alleged balance due on account for merchandise, \u00a1etc., alleged to have been furnished \u00a1on a \u00a1contract between appellant and appellee\u2019s. At the hearing the appellant, to sustain its claim, offered certain \u00a1evidence which the justice \u2022of the peace held to be inadmissible. The record of the justice of the peace contains this recital: \u201cThe evidence offered 'by the plaintiff being held inadmissible by the court, at the suggestion ef plaintiff\u2019s attorney the jury returned a verdict for the defendants.\u201d Then follows the formal entry otf the judgment.\nThe appellant appealed to the circuit court. In the circuit court the appellees moved to dismiss the appeal on the ground that the judgment was rendered against plaintiff \u201cat its .suggestion and by its consent.\u201d The court granted the motion and entered a judgment dismissing the appeal.\nCooke & Shouse, for appellant.\nThe justice excluded evidence offered by appellant, and his action, as shown by the whole record, was, in effect, a compulsory nonsuit. The record does not ishtow a judgment by confession or by consent. The judgment was appealable. Kirby\u2019s Digest, \u00a7 4665. The action of the court was arbitrary. 32 Ark. 74; 59 Id. 330; 90 Id. 591. A mere \u2018 \u2018.suggestion\u201d is not a. confession nor a consent. 5 Ark. 166; 32 Id. 74. The case of 101 Ark. 348, is not applicable.\n8am Williams, for appellee.\n1. The record shows affirmatively that the judgment was rendered at the suggestion of plaintiff\u2019s attorney; this record, however, is only prima facie, and could have been contradicted or amended to conform to the facts. 43 Ark. 230; 46 Id. 153; 51 Id. 317; 52 Id. 373; 58 Id. 181; Kirby\u2019s Digest, <\u00a7 4673. In the absence of a bill of exceptions the judgment is conclusive. 41 Ark. 225; 47 Id. 230; 44 Id. 482; 58 Id. 399; 54 Id. 463.\n2. One can not appeal from a judgment by consent. 2 Stand. Ene. of Proe., 200-206; 32 Ark. 74; 101 Ark. 348."
  },
  "file_name": "0118-01",
  "first_page_order": 144,
  "last_page_order": 147
}