Becker v. Henderson

Per Curiam. Leave was asked in this cause at a previous [347] sitting, in behalf of defendant in error, to file the transcript of a supplemental record; no objection being made by counsel for plaintiff in error, leave was granted and the transcript •was filed. Afterwards, the counsel for plaintiff in error moved to dismiss his writ of error. Upon looking into the transcript of the supplemental record, it appears that a petition was presented to the court below at its last term by the defendants in error, who were complainants in the original proceedings, asking the court to set aside and vacate the decree originally entered in their favor, for reasons assigned in said petition; that the prayer of the petition was granted and the former decree vacated; that at the same term a wholly new and different decree was entered in said cause, and that the transcript filed was the transcript of the proceedings at said last term, which resulted in this new decree. The transcript just filed, therefore, is not the transcript of proceedings in the cause pending here on writ of error, nor supplemental thereto; but that of a new and independent proceeding, which resulted in a wholly different judgment from the one under review.- The latter decree, therefore, is not properly before us for any purpose and cannot be considered in this cause; for which reason the court, upon its own motion, will order the latter transcript to be stricken from the. files. » In respect to the motion to dismiss the writ'of error, we know of no rule of practice that prevents a plaintiff in error from the right to dismiss his own writ; and having elected to exercise this right in the present instance, the order will be made that the writ of error be dismissed at the cost of plaintiffs in error. Writ of error dismissed.