
    Vick’s Executor v. Maulding.
    A release of errors, either actual or constructive, cannot form the subject of a mere motion to dismiss a writ of error. A plea of the release should be filed by the defendant in error, to which the plaintiff may reply or demur.
    WILLIAM H. LANE, who sued for the use of John W. Maulding, recovered a judgment in the circuit court of the county of Warren, against Grey Vick, executor of the last will and testament of Willis B. Vick, deceased. After the rendition of the judgment, a bill was filed by the defendant at law in the court below, upon which an injunction was obtained to said judgment, which injunction was subsequently dissolved by the court upon bill and answer. There never was a release of errors filed as required by law. After the dissolution of the injunction a writ of error was sued out; which the defendant in error moved to dismiss, and assigned for cause of dismissal the granting and obtaining the injunction before mentioned.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

This motion is made to dismiss on the ground that the judgment below was once enjoined, and the injunction dissolved, the defendant insisting that the injunction amounted to a release of errors. By a fair construction of our statute, it is admitted that a release of errors was not signed and sealed as the statute directs.

If the release had been made in strict pursuance of the law, it would have formed the ground of a plea to the assignment of errors, to which the plaintiff might reply or demur, 2 Tidd, 1232; and if this be a release, it is only so by construction, and cannot stand on more favorable ground, than if it had been regularly executed, and cannot, therefore, be made available on motion.

The motion must be overruled.  