
    Grand Lodge Colored Knights of Pythias v. Barlow.
    [67 South. 152.]
    Appeal and Error Judgment reviewable. Judgment by confession.
    
    Where a judgment is rendered pursuant to a peremptory instruction granted at the request of counsel for both plaintiff and defendant, such a judgment is a judgment by confession, and under Code 1906, section 33, cannot be appealed from, although the peremptory instruction was assented to by the defendant, solely because he was unable to secure the presence of witnesses.
    Appeal from the circuit court of Copiah county.
    Hon. D. M. Miller, Judge.
    Suit by H. H. Barlow against the Grand Lodge of Colored Knights of Pythias. Prom a judgment for plaintiff, defendant appeals.
    The facts are fully stated in the opinion of the court.
    Webster Millsaps, for the motion.
    W*. J. Latham, opposed.'
   Smith, J.,

delivered the opinion of the court.

This is a suit upon a life insurance policy issued by appellant. At the close of the evidence the court below peremptorily charged the jury to find for the plaintiff in the sum of one hundred and twenty-five dollars, and there was a verdict and judgment accordingly. ■An appeal was taken to this court, and the cause now comes on to be heard on motion of appellee to dismiss on the ground that the judgment appealed from was “a judgment by confession.” .

The judgment does not recite that it.is “a judgment by confession;” but it appears from the allegations of the motion for a new trial, and from the order by which this motion was overruled, that the peremptory instruction was granted at the request of counsel, both for plaintiff and defendant, pursuant to an agreement between them that this should be -done, and judgment be rendered for the plaintiff for one hundred and twenty-five dollars, instead of one hundred and sixty-five dollars, the amount originally demanded by him.

It may be true, as alleged in- the motion for" a new trial, that counsel for appellant agreed to this disposition of the ease solely because he was unable to secure the presence of the witness by whom he expected to support his client’s contention. Nevertheless the fact remains that the peremptory, instruction was granted at his request; ■ consequently the judgment rendered was, to all intents and purposes, “a judgment by confession,” and from such a judgment no appeal will lie. Section 33, Code 1906.

The motion will be sustained, and the appeal dismissed.

■Motion sustained.

Appeal dismissed.  