Railroad Co. v. Belt

By tiie Court. A petition in error, entitled as above, was filed in this court on June 21, 1879. The record not having been printed, in accordance with the Revised Statutes, section 6711, the proceeding in error was, on March 23, 1880, dismissed by the court, on motion of the defendant in error, notwithstanding plaintiff in error’s resistance to the motion and its motion for further time to print. On April 10, 1880, the [94] plaintiff in error filed another petition in error on the same record, assigning the same errors which had been assigned in the former petition in error, whereupon the plaintiff in error moved to dismiss the latter proceeding, on the ground that it was unauthorized. Held, that the dismissal is a bar to the second petition in error. The rule at common law, where the first proceeding in error abates, or an end is put to it by the act of the plaintiff in error (Birch v. Triste, 8 East, 412; Powers v. Frick, 2 Grant, 306), does not apply in such case. Motion sustained.