Miller v. Pope

Opinion by

Judge Lindsay:

It seems- from the bill of exceptions that upon the trial of the motion of appellants to file their petition, the record of the case of the City of Louisville v. Miller and Others, in the Louisville city court, the entire record of this action’ and' of the action of Hancock v. Miller and other consolidated causes in- the Jefferson Court of Common Pleas, were read and considered by the court. It is not shown at whose instance these records- were considered; nor does it appear that either party objected to the action of the court in the premises.

The entire record in the case was properly before the court for all the purposes of this action, and the records in the cases of Hancock v. Miller and the other causes consolidated therewith were mentioned by appellants in- their petition and made parts of it. Hence upon the motion, as the court had the right to adjudge whether from the petition and the exhibits appellants showed themselves entitled to any character of relief, these records were properly before it, and from the bill of exceptions we must presume that the record from the city court was considered without objection. Such being the case, appellants can not be heard to complain .in this court, that they were prejudiced in the court below by certain- proceedings to which at the time they interposed no objection. None of the records considered by the court of common pleas have been b.rought before this court. The bill of exceptions informs us what evidence was heard but the records themselves are not incorporated into it, nor in any other way made a part of the record upon which this appeal is prosecuted.

John M. Harlem, for appellants. St. John Boyle, for appellees.

From' the brief filed by appellants’ counsel we miay assume that copies of each of them except the case in the Louisville city court are on file in the clerk’s office of this court, but even as to these there is no consent by appellees that they shall be considered upon the trial of this appeal.

. Without a complete record of all the matters upon which the court below acted we can not adjudge that it erred in refusing to permit the petition to be filed, as to transfer the case with the funds in its custody to the Louisville Chancery Court.

Whether the practice complained of in this case be irregular or not, it does not authorize a reversal unless it can be made to appear that it resulted prejudicially to the substantial rights of appellants. The imperfect record before us fails to show such result, wherefore the judgments appealed from are affirmed.