Bell v. Williams's Administrator

Martin, J., delivered the opinion of the court. The appellee prays the dismissal of the appeal, on the ground “ that all the records in the court below, and none of the proceedings had, or opinion of the Supreme Court on a former appeal, remanding said suit for further proceedings, have been sent up to this court,” &c. does not contain the proceedings Court, had'on a wheñ°thePPcasé the appratnneed notbedismissed, ings^aifbcTread ofXifcourt™168 When a cause new proceed-tóot'lr; the note su'ed on protested, to show evidence which did™ not previously exist, and amend his petition, so as to this'1 k'”irc-am-stance.. No cause of action, accruing tion o? diesmC can be set out in an amendment of the pleadings, The clerk’s certificate attests, that the transcript contains a COpy 0f aj¡ proceedings had in the case. There is’ a statement of facts agreed on by the parties. It is true the transcript contains no copy of the proceedings of this court on a fonrjer appeap If recourse is to be had to these proceedings, they may be read from our minutes. The appeal, therefore, ought not to be dismissed. On the return of this case to the District Court, the plaintiff being without evidence of a demand at the place designated in the note, procured it to be protested, and obtained leave to file an amended petition, stating the demand and protest made, since the return of the record to the Dis-tr*ct Court. The filing of this amended petition was objected to, on the ground that it altered the substance of the demand; by making it different from the one originally brought. Code of Practice, 419. The objection was overruled,’and a bill 0f exceptions taken, 1 It appears to us that the District Court erred. The suit was brought on a cause of action necessarily stated, to have occurred before the inception of the suit. The amended , . . . • petition states a cause, originating since the return of the record from this to the District Court. On the merits the plaintiff has not made out his case. It is, therefore, ordered, adjudged and decreed, that the -mfigmjent of the District Court be annulled, avoided and J ° . 7 reversed, and that there be judgment for the defendant, as in case of a non-suit, with costs in both courts.