delivered the opinion of the Court:
It will be perceived, upon an examination of the pleadings in this case, that while seven distinct issues were formed, they presented but two questions of fact:
1st. Did the defendant make and keep good his tender of the amount of the judgment and costs as set forth in his pleas?
2d. Did the defendant, after having made such tender, refuse to pay the amount of the judgment and costs upon a subsequent application by plaintiff?
These two questions, in effect, amount to the same thing, for if the defendant, after having made a tender, subsequently refused to pay the money upon request of plaintiff, then it is very certain he did not keep his tender good as charged in the pleas. So, really, the pleadings, in substance, presented but one question of fact, namely: did the defendant make and keep his tender good as charged in the pleas ? And that was, indeed, all that was in the case.
Both the circuit and Appellate courts have answered this question affirmatively, and this court has no power or authority to reverse, modify or change the conclusion reached by them.
It was the right and duty of the Appellate Court to determine whether the evidence warranted the conclusion reached by the circuit court upon this vital question of fact upon which the whole case turned, and we must conclusively presume that the Appellate Court did its duty in that regard, and that the conclusion reached by it is the correct one. Assuming then, as a fact, that after the rendition of the judgment in question appellee tendered the full amount of the judgment and thereafter kept his tender good, as set forth in his pleas, it would have been illegal and unjust to have revived the judgment, and the circuit court, therefore, properly refused to do so, and the Appellate Court committed no error in affirming the judgment.
But even if we were permitted to review the determination of the circuit and Appellate courts upon this question of fact, we are clearly of opinion that the evidence fully sustains the conclusion reached by those courts.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.