Gibbs v. Blackwell

Per Curiam : The rule of the court requires the errors to be assigned upon the original record, or attached thereto; but the errors having been assigned upon the abstract and brief, upon condition that the rule be at once complied with, we will not regard the first objection as well taken. Where a writ of error is made to operate as a supersedeas, inadvertently, without an assignment of errors on the record, the court, upon its attention being called to the omission, will require them to be assigned at once, and, in default thereof, will dismiss the cause. The seventh rule of the court provides that, when a writ of error not operating as a supersedeas shall issue, the plaintiff in error shall, before the third day in the return term thereof, assign the particular errors of which he complains, and, if the errors are not thus assigned, the cause may be dismissed. In this case the writ of error was made a supersedeas, and, although inadvertently granted without, an assignment of errors upon the record, still the party was not obliged to assign errors before the third day of the term, according to the seventh rule. The fifty-sixth-rule provides that where a writ of error is ■made a supersedeas, the plaintiff in error, on filing the record with the clerk, shall, at the same time, direct a scire facias to issue, and shall use reasonable diligence to have the same served ten days before the term. A neglect on the part of the plaint.iff in error to have a sevre facias issued, or a failure to use reasonable diligence to have the same served in proper time, does not entitle the defendant in error to have the cause dismissed, but he may join in error and have the cause heard at the present term, without giving the ten days’ notice as required by the sixth rule. The objection on account of the non-compliance with the rules in regard to printed abstracts and briefs is not well taken at this time; the cause is not yet called for hearing, and the rule on that subject may yet be complied with. Should the rule in regard to abstracts not be complied with, on or before the calling of the cause, it will be continued or dismissed, at the discretion of the court. The counsel for the plaintiff is required by the thirteenth rule to file one copy of a printed brief of the points and authorities to be used in the argument of the cause, for the use of the opposite counsel, at least one day previous to the argument; until the cause comes on for argument the court cannot know that there is a failure to comply with that rule. The motion to dismiss must be denied. Motion denied.