Wyatt v. Crowder

Little, J. 1. The motion to dismiss the bill of exceptions, because the petition which is the foundation of the plaintiffs’ case was not specified as a part of the record to be transmitted to this court, is overruled. Under the power given by the Civil Code, § 5536, par. 4, this court may require such omitted part of the record to be certified and sent up, when it becomes necessary to consider it in order to fully adjudicate the errors assigned. 2. When it affirmatively appears that the refusal of an injunction was necessarily based upon an opinion entertained by the judge that the petition, taken as true, did not entitle the plaintiffs to the injunction prayed for, a bill of exceptions reciting that they come in due time “and complain of such refusal as error ’ ’ is sufficient as to the matter of assigning error in the judgment to which exception was taken. 3. Under the allegations appearing in the petition now under review, the plaintiffs were entitled to the injunction for which they prayed. Judgment reversed. All the Justices concurring, except Lewis, J., absent.