OPINION ON REHEARING Upon rehearing appellant urges that this court erred in that[9] portion of its decision dealing with the status of the defaulting defendant. It is its position that the judgment from which the appeal is taken was only one in favor of the answering defendant, and that, so far as the defaulting defendant is concerned, the judgment of the lower court did not purport to concern itself. In the decision heretofore rendered, we took the position that the judgment below inured to the benefit of the defaulting defendant as well as to the respondent, and held that, since the appellant appealed only from that portion of the judgment in *Page 42 favor of the answering defendant, the judgment in favor of the defaulting defendant must stand.
Upon a re-examination of the judgment and the record, and aided by the able argument and brief of counsel, we have come to the conclusion that appellant's position on rehearing must be sustained. While it is true that the language of the judgment is broad and inclusive when it recites that the action be dismissed, and, further, that the language of the judgment does not expressly recite that it be dismissed only as to the answering defendant, yet an examination of the judgment itself and of the record convinces us that it was not the intention of the trial court, nor of the parties, that the judgment should operate as one in favor of the defaulting party, as well as in favor of the respondent.
In the first place, it is to be noted that in the judgment itself, while specific mention is made of the appearance of respondent by its counsel, no mention is made in the judgment of the defaulting defendant, nor are the jurisdictional facts as to it set out. While it is true that there is in the record some evidence which might tend to indicate an intention on the part of the appellant to submit the cause to the lower court, so far as the defaulting defendant was concerned, the evidence so adduced is not conclusive on that point. Practically all the evidence was adduced by the way of stipulation between the appearing defendant and the appellant, and the evidence presented as to the non-appearing defendant may be said to be in aid of the evidence produced against the respondent and by way of explanation of the status of the mortgage in question.
A further indication of the intention on the part of the appellant and the understanding of the court as to the effect of the judgment appears in the bill of exceptions wherein it is recited: "On the 27th day of March, 1940, the court made an entered judgment in favor of defendant Northwestern Land and Loan Company and against plaintiff." And no mention appears in the recital of the proceedings had that the judgment *Page 43 was in favor of the defaulting defendant; and with the bill in this condition the lower court made its certificate reciting that the bill of exceptions "contains a full, complete, true andaccurate statement of all * * * proceedings had," etc.
A further consideration impels us to the conclusion we have reached, and that is the general rule that we will not presume that the court attempted to enter a judgment which it had no right to make. In this case the judgment of the trial court was based entirely upon the affirmative plea of the statute of limitations interposed by the answering defendant. That plea could not inure to the benefit of the defendant in default. The only basis upon which judgment could be entered for the defaulting defendant would be that the statute of limitations had run, and advantage of that could not be taken by the defaulting defendant without an affirmative plea. Since no affirmative plea appears, the court could not render judgment in the defaulting defendant's favor. And we will not construe the judgment to reach that result, but will rather presume that the court had no intention of entering a judgment that it had no right to make.
Therefore, the decision heretofore rendered is amended in accordance with what is here said.
ASSOCIATE JUSTICES ANGSTMAN and MORRIS concur.