Gibbs v. Blackwell, 40 Ill. 66 (1865)

April 1865 · Illinois Supreme Court

40 Ill. 66

Gibbs v. Blackwell.

(April Term, 1866.)

Diminution or the becobd—after joinder in error. A joinder in error is not necessarily conclusive upon the defendant in respect of the sufficiency of the transcript of the record; hut he may move to withdraw his joinder for the purpose of suggesting a diminution of the record, and supply its deficiencies, if any are made to appear.

The defendant in error moved the court for leave to file an additional and complete transcript of the record and proceedings in thfe court below, suggesting that the record already on file was defective.

The plaintiff insisted that the defendant, having joined in error, had waived his right to question the sufficiency of the transcript on file.

Per Curiam :

The joinder in error is not necessarily conclusive upon the defendant. While it is true that by the joinder in error he admits the transcript to be complete, yet he may move the court for leave to withdraw his joinder, for the purpose of enabling him to suggest a diminution of the record and to supply its deficiencies. And, regularly, the motion for leave to withdraw the joinder in error should precede the motion for leave to file the additional transcript.

Upon looking into this record, we find it incomplete, and will give leave to the defendant to withdraw his joinder in error, and to file the additional transcript of the record.