Dorsey v. Harding

Garland, J. The plaintiff is appellant from a judgment dissolving an injunction obtained by him. The defendants filed a motion to dismiss the appeal, because the certificate of the clerk shows that the parol evidence given on the trial was not taken down, and does not come up with the record. There is no statement of facts, bill of exceptions or assignment of errors. The counsel for the plaintiff waived the opening; the counsel for defendants proceeded to argue bis motion to dismiss, and was proceeding with his objections, when the counsel for the plaintiff rose and offered to file a paper, which to that moment had been in his possession, which he said was an assignment of errors apparent on (he face of the record. Defendants’ counsel objected to the paper being thenfiled,as the cause had been fixed for trial without objection, and the argument had commenced. The appeal was returnable on the first day of the present term, [133] when, without objection, the cause was fixed for trial on the fourth, day thereof. The plaintiff’s counsel contended, that by article 897 of the Code of Practice, he had a right to file his assignment of errors at any time within ten days after the record is brought up. There is no doubt of his right to do so, if the cause has not been fixed for trial in the meantime; but if a party agrees directly or tacitly to a day being assigned for trial before the expiration of the ten days, then he must file his assignment of errors in time, to give the appellee’s counsel an opportunity of seeing, them, and knowing what he has to contend against; and we think, at least one day ought to be allowed for that purpose. In this Case the plaintiff had gone to trial, and it was certainly too late to change the issues between the parties; we therefore overrule the motion to file the assignment of errors. Upon the question of dismissal, we see no distinction between this case and that of Roberts v. Benton, just decided, ante p. 100. The appeal is therefore dismissed with costs.