Collins v. Davis ( 1877 )

By the Court.

The original action was brought by Collins against Davis, to recover a money judgment.

Upon trial in the court of common pleas, judgment was rendered for plaintiff, which was subsequently reversed by the district court, on application of the defendant, and, in May, 1875, a petition in error was allowed to be filed in the supreme court, by the plaintiff, to reverse the judgment of reversal.

The defendant now moves this court for an order to the clerk of the court of common pleas, directing him to send up a full transcript of the record in the case*- and, in support of this motion, represents that since said judgment of reversal, and before the case came into this court upon error, the case was remanded to the common pleas for further proceedings, where the parties voluntarily appeared, and the case was again tried, without objection or a suggestion by the plaintiff' that he intended to prosecute error in this court to reverse this judgment of reversal; which second trial resulted in a verdict for defendant. Held,, that these proceedings in the court of common pleas, subsequent to the final judgment of reversal in the district court, form no part of the record of such final judgment, and can not be brought here upon suggestion of diminution of record and motion. They should be taken advantage of by answer, upon whicli an. issue of law or fact may be joined.

Motion overruled.