Doe on the Demise of Elmore v. Grymes

Supreme Court

Doe on the Demise of Elmore v. Grymes

26 U.S. 469, 7 L. Ed. 224, 1 Pet. 469, 1828 U.S. LEXIS 418

Supreme Court of the United States·Decided February 26, 1828·Published·Cited by 54 cases

Opinions

Mr. Chief Justice Marshall

delivered the opinion of the Court.-—

The Court has had this, case under its consideration, and is of opinion that the Circuit Court had no authority to order a peremptory nonsuit, against the will pf the plaintiff. He had [472] a right by law to a trial by a jury; and to have had the case submitted to them.- He might agree to a nonsuit;- but if he did not so choose, the Court; could not compel him- to submit to it. But the state.of the' record does not en.able'this Court to render a final judgment, because the record is defective, in not shiow-inga judgment of nonsuit, entered in the Circuit Court. Although the bill of. exceptions states that fact yet the-record does not contain the judgment itself..

The plaintiff may therefore apply for a. certiorari, tp bring up a perfect record,-or dismiss-.the present writ of error and proceed anew; as his counsel may think best for the interest of their client. '*

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Mr. Chief Justice Marshall

delivered the opinion of the Court.-—

The Court has had this, case under its consideration, and is of opinion that the Circuit Court had no authority to order a peremptory nonsuit, against the will pf the plaintiff. He had [472] a right by law to a trial by a jury; and to have had the case submitted to them.- He might agree to a nonsuit;- but if he did not so choose, the Court; could not compel him- to submit to it. But the state.of the' record does not en.able'this Court to render a final judgment, because the record is defective, in not shiow-inga judgment of nonsuit, entered in the Circuit Court. Although the bill of. exceptions states that fact yet the-record does not contain the judgment itself..

The plaintiff may therefore apply for a. certiorari, tp bring up a perfect record,-or dismiss-.the present writ of error and proceed anew; as his counsel may think best for the interest of their client. '*

Doe on the Demise of Elmore v. Grymes, 26 U.S. 469, 7 L. Ed. 224, 1 Pet. 469, 1828 U.S. LEXIS 418 (1828).

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26 U.S. 469 (Doe on the Demise of Elmore v. Grymes) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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