Van Meter's Heirs v. Lovis' Heirs

Breese, J. There was a joinder in error in this case, and submitted on briefs, no diminution of record having been alleged. There is but a fragment of a record before us, and if we should act on it, we would be compelled to affirm the decree, on the presumption the court had sufficient before it to warrant the decree. The decree, as it appears in the record, on assuming that the pleadings are all correct and in correspondence with.the facts stated in the decree, is certainly wrong, but we have no right so to presume. Avoiding, then, a course which might prejudice the complainants, we have exercised the discretion to dismiss the writ of error, so that the complainants may bring the case properly before the court, and have justice done them. We cannot safely act on this fragment, of a record. The dismissal of the writ of error does not dismiss the original cause of action or bill, or vacate the decree. A new writ of error can be prosecuted upon a more complete record. A party complaining of a decree in chancery must show in the record he brings here, what was the state of the case upon the pleadings in the court below. If he does not, this court must either affirm the decree, or dismiss the writ. This latter course has been pursued for the benefit of the complainants, and as one the least injurious to them. It will be understood, that it is not for this court to direct, of its own mere motion, how much, or what parts of any particular record shall be brought up. The writ of error is dismissed. Writ of Error dismissed.