
    R. J. Ross v. J. W. McIntyre et ux.
    Supreme Court. Practice. Sixth rule. Certiorari. Submission.
    
    After a case has been submitted, and its dismissal ordered because no judgment of the Circuit Court appears in the transcript, except as recited in the bill of exceptions, a motion to set aside the dismissal and reinstate the case, because, in fact, there is a judgment on the minutes of the court below, will not be sustained. The diminution must be suggested, and certiorari to perfect the record awarded before the case is submitted and decided, or the parties are held to admit that the transcript of the record is true.
    Motion, by E. J. Eoss, the plaintiff in error, to set aside the order of dismissal, made in this case at the present term of court, and reinstate the case on the docket; and for a certiorari, to perfect the transcript of the record, because the case was not tried here on its merits, but was dismissed, on the ground that the transcript showed no judgment in the record proper, whereas, in point of fact, there is a-judgment regularly entered on the minutes in the court below, which the clerk of that court, in making up the transcript, failed to copy therein. .
    
      R. C. Smith, for the motion.
    No counsel, contra.
    
   Simrall, C. J.,

delivered the opinion of the court.

The motion is to set aside the dismissal of the cause at a former day of the term, and to instate it on the docket.

The dismissal was ordered, because there was no judgment of the Circuit Court in the transcript, except as recited in the bill of exceptions.

The sixth rule is, “ that a diminution may be suggested by either party, and certiorari awarded, provided it be done in the first week of the term, or within four days after the assignment of errors filed.”

This transcript was filed June 20, 1876; and on the same day the assignment of errors was filed.

The rule assumes that if diminution is not suggested within the time both parties are satisfied with the record and that it is true. Ample time is allowed for examination. We cannot tolerate the practice of permitting parties to make the suggestion after the cause has been submitted and decided.

That, in effect, would leave our judgments uncertain, and subject to be recalled during the entire term at which they were rendered. • Motion denied.  