Sims v. Norfolk & Western R R

OPINION

By THE COURT

The above entitled cause is now being determined on motion of defendant in error to strike the bill of exceptions from the files, and dismiss the petition in error. Five alleged grounds are set forth in the motion. This motion should be overruled for the reason that it necessarily involves a determination of the entire case on the merits.

The bill of exceptions very clearly indicates that it only contains a small part of the evidence taken in the court below. This practice is permissible if it adequately presents to the court the error complained of. Whether or not it does can only be determined after a full consideration of the cause. Defendant’s brief presents the question on the merits.

A motion of this character might be interposed in any case and thus advance the cause out of its regular order.

The motion to strike the bill of exceptions from the files will be overruled; the motion to dismiss the petition in error will be held in abeyance until the case is determined on the merits.

HORNBECK, PJ, KUNKLE and BARNES, JJ, concur.