Summerville v. Painter

The opinion of the court was delivered, by

Lowrie, C. J.

Owing to the indefiniteness of the prcecipe for the writ of error in this case, we have had some difficulty in discovering which record is intended to be brought up. It ought to have been entitled James Summerville v. Robert Painter, and to have directed the prothonotary to issue a writ of error to the Court of Common Pleas of Jefferson county, to remove the record of a certain action in that court, wherein the said Robert Painter is plaintiff, and the said James Summerville is defendant, being No. 41 of December Term 1857. Every prcecipe for a writ of error ought to be thus definite, if the plaintiff in error desires to enforce obedience to the writ;

There is no disobedience here; for the court below has sent us the proper record and another besides. This is more than enough. Though there is one paper that is common to both suits, we can review only the one record on this writ.

The argument is that the submission in this case is void, because it was signed only by Robert Painter, and yet included another case in which both Robert and James Painter were defendants, and Summerville plaintiff. We do not think so. Summerville admitted Robert’s authority by entering into the submission with him and trying what he could gain by it, and rues only when he fails, and then it is too- late to rue. Besides, the cases are several, and therefore the submission must be treated so, and is binding for this case if not for the other. The other exceptions relate to facts not appearing of record, and cannot be considered here.

Judgment affirmed.