Webster v. Fisk

Martin Ch. J.: The motion to docket and dismiss must prevail. Ordinarily the reasons shown by the plaintiff in error for the delay in filing the return to the writ, would excuse such delay, and he would he permitted to file his return. And such would have been the result in the present case had not our attention been called, by both parties, to the record offered to he filed. From inspecting this, we find no hill of exceptions, and no assignment of errors which we can consider. The general assignment is invalid, and will authorize no action by the court — assignments of error being by rule 12, required to be special — and tbe special assignment is not of errors in the record, but of errors committed at the trial. While, as a general rule, we will not look into a record upon the consideration of motions like the one now before us, yet when it clearly appears that the plaintiff has no case in court, from defectivo or insufficient records and proceedings, as in the present case, -we think we are not authorized to suffer any further proceedings which will only operate to delay and to create expense, when the party is fairly out of court by his ow& •default. The other Justices concurred.