Brown v. Lathrop & Co.

•Jackson, Justice.

In this case a diminution of the record was suggested by plaintiff in error on account of the absence of the motion for a new trial and brief of evidence, but the suggestion contained no statement in substance or otherwise of the ■said motion and brief, so as to enable the defendants in ■error to admit the same and have the case heard; and defendants moved to dismiss the writ of error because there was no brief of evidence either in the bill of exceptions or in the record, and no final judgment on the motion for new trial, even in the diminution as suggested.

Without the evidence we cannot pass upon the case intelligently. The court below refers to it in his certificate of the bill of exceptions as necessary to be had for the hearing, and it is conceded to be essential. Withou t a final judgment the case is pending in the superior court now, and has no place in this court. The suggestion did not remedy the defect, and was itself defective in that it was •so framed as not to permit the facts left out of the record to be admitted by the defendants, and the case to be tried .at this term, which is always their right, and the policy of the law which put this court in operation. Both sides have rights; the one to suggest what is missing from the record, the other to admit its truth and go on to trial. The first would continue the case unless admitted ; the last — the admission — would expedite it; and to expedite it is the policy of our entire system of writs of error t-q. this-court. See Code, §§4250, 4282, 5087 ; Supplement to Code, §613.

The act of 1877 does not relieve the plaintiff in error. The record cannot be now got here within the call of the Pataula circuit. There has been ample time to have-obtained it, and to obtain the benefit of that, very liberal act, the party invoking it must be without fault. He has been indulged for some weeks owing to the peculiar situation of the counsel who represents the absent counsel of plaintiff in error, and the day of grace is now ended in every view of the law. See Supplement to Code, §§26, 27.

Writ of error dismissed.