
    Edwards v. Griffiths.
    Want of merits in the assignments of a petition in error, is no ground for dismissing the petition.
    Motion to dismiss the ease of John N. Edwards v. John S. Griffiths, a proceeding in error to the Circuit Court of Jackson county.
    
      Ambrose Leach and James Tripp, for plaintiff in error.
    
      John Harper and David Davis, for defendant in error.
   By the Court.

The original suit was upon a promissory note, in the execution of which, the defendant Edwards claimed a mistake had occurred; and the issue between the parties was as to this mistake. By consent of parties” the case was' tried to the court, which found for the plaintiff, and rendered judgment in his favor for the full amount claimed. A motion for a new trial was made and overruled, and a bill of exceptions containing all the evidence was allowed by the court and made a part of the record. The ground upon which the plaintiff in error asks a reversal of the judgment is, that there is no evidence to support the judgment and findings of the court below; and the defendant in error now moves to dismiss the action on the grounds, (1) that the court has no jurisdiction, and (2) that the record presents only questions of fact for the consideration of the court,

The motion is, as we think, based upon a misapprehension of the petition in error. It urges as a ground of error that there is no evidence to support the finding and judgment of the court below. This is a question of law and not of fact. It is claimed, however, that it is perfectly plain that there was evidence, and that the assignment that there was not, is merely frivolous and adopted for the purpose of delay only. But the jurisdiction of the court on a proceeding in error, does not depend upon the merits of the assignments. Whether the assignments are well taken' or not, in no way affects the jurisdiction of the court to hear and determine them; and hence their sufficiency cannot be raised by a motion to dismiss on the ground of a want of jurisdiction. It is true that proceedings in error may be resorted to for the purpose of delay. The correction of such abuses is found in the power given the court to assess a penalty, when it finds that there was no reasonable ground for the proceeding.

Motion overruled.  