Motion to dismiss the writ of error. The defendant in error in this cause joined issue, with protestation, to the first assignment of error, because, in the assignment of errors, it is alleged that the counsel for Smith requested that the Jury should be polled before the verdict was recorded, when there is nothing in the bill of exceptions, or the record, to show that any such request or motion was made before the verdict was recorded.
Cited by 4 later decisions — most recently June 1965
3 state decisions
Good law ✅— No negative treatment on recordhow we know
¶3[1.] The assignment cannot enlarge the bill of exceptions, an d ns in this case, it states a material fact, to wit: that the request to poll the Jury was made before the verdict was recorded, which does not appear in the bill, that statement must be stricken out of it.
¶4In the descriptive part of the bill, and also of the writ of error, Cunningham is stated to have been a party to the cause below. The record shows that he had been a party, but had been dismissed by order of .the Court. He was not a party when the cause was tried below. In the writ of error, and in the citation, he is not made a party — the only parties are Mitchell, Smith arid Shorter. In this the pleadings all agree; the variance is immaterial, and the pleadings might be amended so as to conform literally, if necessary.
¶5[2.] The notice of the signing and certifying of the -bill, is not signed by any one. There is an acknowledgment of service on it by the defendant in error — it states the case truly and comes up with the record. That this is notice in fact, may be conceded, *458but it is not legal notice. To be so, it must be signed by the plaintiff in error or his counsel. As this objection is now madfor the first time, we will not dismiss this cause, but in future a notice, to be valid, must be signed.
