Montgomery v. Jones

5 Ind. 526

Opinion

Stuart, J.

After exceptions taken to the opinion of the Court in granting a new trial, the record proceeds’ “and this cause is dismissed.” Then follows a judgment for costs in favor of the defendant, and the record continues, “the defendants pray an appeal to the Supreme Court.” If we suppose the word “ defendants” to be a clerical error, it will not help the case. Though the point is not urged by counsel, yet such final action in the Court below, apparent on the face of the record, must be judicially noticed. We must presume that the dismissal of the suit was either by express or implied consent of the appellants; for they do not except. It is held that a writ of error will not lie after a voluntary nonsuit. Moore v. Herndon, 5 Blackf. 168.—Van Wormer v. The Mayor of Albany, 18 Wend. 169. In this state an appeal stands in the place of a writ of error. 2 R. S. 158. And a dismissal is equivalent to a nonsuit. McKinney v. Finch, 1 Scam. 152.

J. B. Howe, for the appellant. R. Brackenridge, Jr., for the appellee.

There is an exception to this rule in favor of administrators suing as such, briefly recognized in Pollard v. Buttery, 3 Blackf. 239. But this case is not within it; and the reason for the exception being both vague and of doubtful policy, we would not feel authorized to extend it by analogy to cases not strictly within those decisions.

Per Curiam. — The appeal is dismissed with costs.