
    DAVIS vs. McCAMPBELL.
    [PETITION FOR REHEARING AFTER FINAL JUDGMENT AT LAW.]
    1. Security for coats of appeal. — On appeal from a judgment ’of the circuit court, dismissing a petition for rehearing after final judgment, (Code, 2407-15,) tlio surety on the supersedeas bond, being a party defendant to the judgment appealed from, cannot become a surety for the costs of the appeal; and if there is no other surety for the costs, (Code, $ 3041,) the appeal will be dismissed on motion.,,
    2. Rehearing at law, on account of dost, receipt since foynd. — Section 2407 of the Code, authorizing- a rehearing after final judgment at law, on account of a lost receipt or discharge of,.the claim sued on, which has since been found, does not apply to a case wlierb theiaction is founded on.a promissory note, and the receipt only shows a payment of the original consideration of the note..
    3. jgame, on«account of surprise, accident,-.misialcc, or -fra,nd.-^Whcre the defendant in an action at law is required by the' court, as the condition of a continuance, to confess a judgment for a part of tlio plain-tiffi’s demand, and confesses judgment accordingly, be cannot after-wards obtain a-j¡ehearing as to the confessed judgment, (Code, §2408,) on.the ground of surprise, accident, mistake, or fraud. ■
    Appeal from the Circuit Court of Calho.un.
    Tried before the Hon. S. D. Hale.
    The original action in-'this case was brought by James A. McCampbell, against J. L„ Havis, and was founded on -, the defendantfopromissory note for $346 37,: dated the 27th April, 185$,'>apd payable onetday after date. The defend- . ant pleaded not guilty, want of consideration,-'failure of ■ consideration, fraud,in procuring the execution of the note, and set-off. At-,the„Ma1y term, 1859) a judgment was rendered against the defendant,-,by-confession, for;.$1,75 ; and • the cause was continued, as,to the residue ofuthe plaintiff’s . demand. On the 3d,-September, ;1859>;tlie defendant filed-O his petition, duly sworn t.o, asking ta supersedeas of the ex- . ecution which had been issued on the confessed-judgment, . an,d a rehearing of the canse.-; and executed a supersedeas ■ ■ bond, as required by the.sta.tute, with Turnley 'as his surety. The petition alleged, .that the note was executed by. the defendant as the administrator of the estate of one • William Mallory, deceased, ¡and,;was,,given .for the amount of,, an open account, -which,-the,, plaintiff claimed to hold- f against said Mallory ; that-Qn.e.,itesi¡¡of said,account was . $180 60, paid by plaintiff to .'-one ¡McNutt on,the 18th Oc- - tober, 1,853, and another itemnwas $71 63, taxes paid by .- plaintiff, .in...November, 1853^-y-footK..of.. saidfipaymenta. háving been made by plaintiff, as he claimed-,- for said Mal-lo*ry in his life-time f that the defendant,- believing he bad a’good defense- against tlié- note, asked a continuance of the ■ cause at the trial term, huh was unable to make a satisfac- - tory showing, and was therefore required by the court to confess a judgment, ,as-above stated, for-a part of-the plaintiff s demand, as-the¡ condi'tibmon which a continuance ■- would be granted as -th the residue ; and -that, after then rendition of this- judgment, he had foundbfeceipts showings: the previous paymen.i>of- the tw©? items above mentioned, which receipts were lost or mislaid at the time the'.jjjdgment was rendered. T-he court having .overruled a demurrer to the petition,--the-plaintiff in-the judgment.filed ■ a plea, denying the truth of the facts therein alleged ;• -and •• issue was joined on said plea.
    On the trial before-the jury, as the bill of exceptions’ shows, the petitioner offered in evidence the plaintiff’s an- - swers to interrogatories under jibe statute, the receipts mentioned in-the petition, and- testimony tending to show* that the judgment was-confessed under the-ciroumstances stated, in-the> petition. The account-which--was-the original consideration of the note, was made an ‘exhibit to tbe •- interrogatories to tbe plaintiff, and- also to one of*• the de- - fe-ndant’s pleas to -the original action ; "and while-said ac-- - count contained charges against the defendant for the two < items above referred to, it gav&--h-im credits for two'sums---very nearly correspQnding with ifbose items, both in--dates and amounts. The--petitioner reserved several exceptions -- to the rulings of thfe<«©urt-err th!e--evidence,-which require-no particular notice:^.-On’’all the evidence'.--adduced,- the court charged the jury, that they must find for the--plains* v tiff in the judgmentij-to which-*charge the petitioner ex- - cepted.- On the:verdict of the jury, the-court ¡dismissed-the petition and¡supersedeas, and rendered judgment against \ the petitioner and-his-surety on the supersedeas bond, for-r the amount bfdfch’e original judgment and costs; and-this-■* judgment,’together with tbe rulings of the court on the- • pljeadi-ngp.and evidence;-is here assigned as error. A-mo**-tion was submitted, on the-part of the appellee, to dismiss the appeal for want of security for costs.
    M. JV TukNLEY, for appellant.
    MaetíNj’-HepliN- & ForNey, contra.
    
   STONE, J.

As-a motion 'has been made in this case to dismiss-the appeal,-for want of security for-eosts, we fee] bound to respond to it. ’ The appeal was taken • from the judgment of the circuit court, dismissing the -supersedeas. That judgment was rendered against J. L. Davis, and M. . J. Turnley, his surety ea the supersedeas bond-j the judg-ement being against both-of’them. M. J. Turnley is "the only surety for costs of-the-appeal to this court. Being 13 party to the judgment appealed from, 'the execution "by Mm of the obligation intended as a security for costs, is -not a compliance with section 3041 of the 'Code. -There is-no security for costs, and 'the*appeal-must be dismissed,

The-appeal, however, may be amended, or a"new appeái may be prosecuted, as two’years have not elapsed since the judgment appealed from was pronounced. We wall, therefore, dispose of the merits of-the-case.

We do not think the case-made by the petition for supersedeas is’within section 2407 of the Code. That section provides forra written release or-discharge of the claim sued on. It contemplates a case where the'release operates directly on the cause’of action which is the subject of ’the suit. It does not reach’ a case like the present, where the lost paper only tends to show that- the note, which is the foundation of the action, was executed in 'mistake, and, to . a certain extent, without consideration. If the papers relied on in the presentiapplication are worth anything, their -value consists in the fact- — not that ‘they are a release or ..discharge of the claim-on'whicli judgment was rendered— ■but that such claim neverha'd a'valid existence. For such cases section 2407 of the Code makes no provision.

The appellant’s -case, then, must stand or fall on section 2408 of the Code. That section ‘gives a right to a rehearing, at any time within four months after judgment, “ when a party has been prevented from making his defense, by surprise, accident, .mistake, or fraud, without fault on his part.” The jiidgmentdn the present case was rendered on. confession... To relieve himself from this record acknowledgment of the justice of the claim, the appellant shows in his-proof that 'he had made application to the circuit, court for a continuance of the suifagainst him, and that the circuit court required him, as a condition on which he would grant the continuance, to confess judgment for one hundred'and seventy-five dollars, part of the claim sued on. This ’plain fact proves, that the circuit court adjudged the showing for" a continuance, as to that sum, to be insufficient. The appellant thereupon accepjied the terms, and confessed, the judgment.* This transaction ■had all the elements of a contract by matter of record,' and the appellant cannot be relieved of it in a proceeding under section 2408 of the-Code. We. hold that, by a -judgment confessed, under the circumstances disclosed, in this record, the party estops himself from afterwards litigating the matter, to -the extent confessed ; unless, perhaps, he mighty in.another forum, show that the.cicf of confession was procured from-him by fraud. •

Nor can we- perceive, by anything- -apparent:on this record, that the appellant has been materially injured by the judgment which the law pronounces on his acts. He claims a credit,, on. 18th October, 1853, of $180 59 ; he obtained a- credit, according to his own showing, of $180 .on the same account, hut-dated October 19th, 1853. He -claims a credit of $71 -63,.taxes paid; .he received a credit of $70.

Appeal dismissed.  