Haines v. Clary & Whaley

1. Where, upon the calling of a case, a motion is made to dismiss the writ of errór, and immediately thereafter a diminution of the record is suggested, the latter will have precedence and will be first disposed of before the motion to dismiss is considered, even though the record, if completed, would not prevent a dismissal. The court will not dispose of any case finally with an incomplete record where a suggestion of a diminution is made on or before the calling of the case. 2. The sheriff is a necessary party to a bill of exceptions filed to the refusal to grant a new trial on the motion of complainants to a bill to enjoin certain plaintiffs in fi. fa. and the sheriff from proceeding with certain executions, and praying the cancellation of the same, even though the sheriff never made any defense, and the case was submitted to the jury upon certain issues of fact, upon the finding [520] of which the chancellor rendered a decree for the plaintiffs in fi.fa. that the executions do proceed. The sheriff not having been served with the bill of exceptions, the writ of error will be dismissed. Parties. Practice in the Supreme Court. February Term, 1881. When the case was called, counsel for defendants moved to dismiss the writ of error because the sheriff had not been served with a copy of the bill of exceptions. As soon as counsel for plaintiffs in error could be heard after the motion was stated, they suggested in proper form a diminution of the record. It was replied (i) that the motion to dismiss had precedence, and (2) that the court would not do a useless act by completing the record in a case which would necessarily be dismissed. Counsel for plaintiffs insisted that the court could not [521] finally dispose of any case with an incomplete record, and that therefore the motion to dismiss could not be entertained until opposing counsel admitted the record to be as stated in the suggestion, or the missing portions were-supplied at the next term, and it was so ruled. The record was then admitted to be as stated in the suggestion, and the motion to dismiss renewed, which the court sustained.