McGowan v. Elroy

District of Columbia Court of Appeals

McGowan v. Elroy

28 App. D.C. 84, 1906 U.S. App. LEXIS 5219

CourtDistrict of Columbia Court of Appeals

DecidedJune 7, 1906

DocketNo. 1677

StatusPublished

Cited by2 cases

This text of 28 App. D.C. 84 (McGowan v. Elroy) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McGowan v. Elroy, 28 App. D.C. 84, 1906 U.S. App. LEXIS 5219 (D.C. 1906).

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Opinion

Mr. Chief Justice Shepard

delivered tbe opinion of tbe Court:

John H. Simms, one of tbe appellees, bas suggested to tbe [85]*85court a diminution of the record, and moved for certiorari to complete the same.

Ordinarily motions for certiorari to complete the record in this court are granted without examination of the transcript on file, where application is made and sworn to as required by the rules. The matter sought to be brought up on this motion would add immensely to the record, and incur very great expense. For that reason the court has looked into the transcript of the record filed by the appellant to ascertain whether or not there is reasonable ground for granting the motion. We think there is none.

This, it will be remembered, is an appeal from a decree dismissing a bill of review filed by the appellant in the court below. The transcript of the record filed on that appeal contains the original bill of complaint in the cause, demurrer thereto, decree on demurrer, the amended bill, demurrer and decree thereon, answer of the parties, the final decree of the court, petition for rehearing, decree thereon, bill of review with demurrer thereto, and decree sustaining that demurrer. The bill seeks to review' the decree rendered on the original bill, answer, and evidence taken in the cause. This bill is necessarily founded on some error that is apparent from the bill, answer, and other-pleadings and decree. A bill of review does not go into the evidence at large in order to establish an objection to the decree,, founded on any supposed mistake of the court in its deductions from the evidence. Whiting v. Bank of United States, 13 Pet. 6, 13, 10 L. ed. 33, 36. See also Adriaans v. Reilly, 27 App. D. C. 167, and cases there cited.

The object of the motion in this case is to compel the bringing up and adding to the record the evidence taken in the court below. As the cause must be tried upon the pleadings and decree, and not upon that evidence, the record here ought not to be encumbered with it.

The motion is denied, with costs.

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Mr. Chief Justice Shepard

delivered tbe opinion of tbe Court:

John H. Simms, one of tbe appellees, bas suggested to tbe [85]*85court a diminution of the record, and moved for certiorari to complete the same.

Ordinarily motions for certiorari to complete the record in this court are granted without examination of the transcript on file, where application is made and sworn to as required by the rules. The matter sought to be brought up on this motion would add immensely to the record, and incur very great expense. For that reason the court has looked into the transcript of the record filed by the appellant to ascertain whether or not there is reasonable ground for granting the motion. We think there is none.

This, it will be remembered, is an appeal from a decree dismissing a bill of review filed by the appellant in the court below. The transcript of the record filed on that appeal contains the original bill of complaint in the cause, demurrer thereto, decree on demurrer, the amended bill, demurrer and decree thereon, answer of the parties, the final decree of the court, petition for rehearing, decree thereon, bill of review with demurrer thereto, and decree sustaining that demurrer. The bill seeks to review' the decree rendered on the original bill, answer, and evidence taken in the cause. This bill is necessarily founded on some error that is apparent from the bill, answer, and other-pleadings and decree. A bill of review does not go into the evidence at large in order to establish an objection to the decree,, founded on any supposed mistake of the court in its deductions from the evidence. Whiting v. Bank of United States, 13 Pet. 6, 13, 10 L. ed. 33, 36. See also Adriaans v. Reilly, 27 App. D. C. 167, and cases there cited.

The object of the motion in this case is to compel the bringing up and adding to the record the evidence taken in the court below. As the cause must be tried upon the pleadings and decree, and not upon that evidence, the record here ought not to be encumbered with it.

The motion is denied, with costs.

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28 App. D.C. 84, 1906 U.S. App. LEXIS 5219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgowan-v-elroy-dc-1906.

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