Bingham v. Wyse

Lipscomb, J. The record in this case has been submitted by the defendant in error, and he suggests the death of Bingham, one of the plaintiffs in error, and prays that the suit, may abate as to him, and asks judgment of affirmance against the other plaintiffs in error, with ten per cent, damages for delay. The plaintiffs in error have interposed a motion to dismiss the suit, on the ground that notice of the writ of error had not been served on the defendant in error; that plaintiffs in error had no opportunity to bring up the case, for want of notice or service of petition, &c. The citation in error to the defendant, is only designed to bring him into this Court to resist the reversal of his judgment, and he can waive such notice and voluntarily make his appearance. Should he so appear, all that the plaintiffs could require would be an opportunity to show that error had been committed in the rendition of the judgment, 'without first having as: signed the error in the Court below. This he may now do. We have looked into the record, and perceive no error, to reverse the judgment. Nor does it appear that there was any ground to justify taking out a writ of error. The judgment is affirmed with ten per cent, damages for delay. Judgment affirmed.