
    Shealy vs. Toole et al.
    
    1. The grant of a non-suit as to one of two defendants is not such a final adjudication as will give the plaintiff the right to bring the case at once to this court, it Appearing from the record that the case as to the other defendant is still pending below.
    2. A diminuition of the record must be suggested on or before the calling of a case on the docket. After the case has been called, and a motion to dismiss made and argued, it is too late to suggest a diminution except by consent.
    Practice in the Supreme Court. At February term, 1881.
    The record and bill of exceptions in this case shows that Susan V. Shealy, by her next friend, filed her bill, against W. T. Toole, and Martin L. Shealy, her husband, the object .being .to protect her interest in certain land which was alleged to have been bought by Martin L. from Toole and partly paid for with complainant’s money, and which was about to be subjected for the balance of the purchase money. On the trial, the record shows that a non suit was granted as to Toole, but nothing appears to indicate any disposition of the case as to Martin L. Shealy. When the case was called in the supreme court, a motion was made to dismiss it, because there was no final judgment in the court below. After the motion to dismiss had been argued for some time, counsel'for plaintiff in error proposed to suggest a diminution of the record. The court dismissed the writ of error, announcing the principles stated in the head-notes.
    JNO. R. WORRILL, for plaintiff in error.
    Allen Fort ; W. A. Hawkins, for defendants.
     