Dworken v. Miller

OPINION

Per CURIAM:

If the motion of the plaintiff to strike the bill of exceptions from the flies should be sustained, this cause could be considered by this court only upon the transcript of docket and journal entries, the pleadings and original papers which fail to show that the divorce action instituted by plaintiff on behalf of Olive A. Miller has been dismissed and the court in which it was instituted has thereby lost jurisdiction to make allowance for the attorney fees claimed by plaintiff, which does appear in the incomplete bill of exceptions.

Consequently, in the interest of justice, said motion to strike will be treated as a suggestion for diminution of record, and this court will remand the bill of exceptions to the municipal court with instructions that there shall be incorporated in said bill of exceptions all the evidence introduced and the rulings made and proceedings had by the municipal court upon the trial of this cause in said court (and no other matters or proceedings) without attempting or purporting by reference to incorporate therein or in the transcript the objections made to such bill of exceptions by plaintiff in the Municipal Court as was done in the incomplete bill of exceptions filed herein; and that upon completion of said bill of exceptions in conformity with this order, said bill of exceptions be forthwith returned to and filed with this court.

A journal entry in conformity herewith must be filed by the plaintiff.

GUERNSEY, PJ, MIDDLETON, J, DOYLE, J, concur.