Robinson v. Starnes

Robinson v. Starnes. Action for False Imprisonment. 1. Trial and its incidents; presumption as to judgment on appeal. Where it is shown by the record and the ¡judgment entry that when the judgment appealed .from was rendered, the .parties were present by their attorneys, and the judgment entry recites that on motion of the plaintiff the cause is dismissed at the cost of the defendant and judgment is thereupon -accordingly rendered against the defendant for costs, it will he presumed on appeal that the judgment was by consent, there being no negation that such judgment -against the defendant for costs was consented to or acquiesced in by the defendant, and the judgment on appeal being presumed to be free from error, unless the contrary is made to appear Appeal from, the Circuit Court of Limestone. Tried before the- Hon. Osceola Kyle. This action was brought by the appellee, Thomas Starnes, against tlie appellant, O. M. Robinson, to recover damages for false imprisonment. At a subsequent term of the court the following judgment was rendered: “Comes the parties by their attorneys and the plaintiff says he wishes no further to prosecute this suit-, and on motion of the plaintiff it is ordered and adjudged bv the court that this.1 cause he dismissed at, the cost o-f the defendant. Tt. is. therefore, further considered, ordered and adjudged by the court that, the n-laintiff for the use o-f the officers of this court, have and recover of the defendant the costs in this behalf expended for the collection of which let,.execution issue.” From lliis judgment the. defendant.appeals, and assigns as emu- the portion of the. judgment taxing the costs of the case against the defendant. O. W. Speake, for appellant. The successful party in all civil cases is entitled to full costs, for -which judgment must he rendered. — Code, § 1325; McWhorter v. Mans, 1 Stew. 63; Toirnson r. Moore, 9 Port. 136; Shearer r. Boyd, 10 Ala. 279 ; Westmoreland v. Bale, 11 Ala,. 122; Massey t\ Steele, 11 Ala. 310; Hanson v. Jacks, 22 Ala. 519; Reach 'r. Devine, 17 Ala,. 262; Folmar v. Folmar, 71 Ala. 136. No counsel marked as appearing for appellee. [MAJORITY — SIIAIiPE, J.] SIIAIiPE, J. A judgment, of a court of general jurisdiction rendered within the scope of the court’s powers is on appeal presumed to be free from error until the contrary is made to appear. — 3 Brick. Dig. 406, § 10; 2 Encv. PI. & Pr. 120. The record in this case shows that when the. judgment appealed from was rendered the parties were present by their attorneys and it does not negative that the plaintiff’s motion to dismiss the cause at defendant’s cost, was consented to or acquiesced in on the part of the defendant. In the absence. of such negation and under the principle above referred to, it is here presumed that, the judgment was by consent, and consequently it will be affirmed. Affirmed.