#### REED *v.*DeWOLF.

Certiorari — diminution of record — certifying facts not of record — mal practice — writ of error improvidently issued and quashed.

It seems that after an allowance of a writ of certiorari to a justice, the filing of transcript, without writ or return, will not give the court jurisdiction.

The making suggestion after suggestion of diminution of record, to induce a justice to certify up as a copy of his docket, facts which never appeared there, or the contests of the parties, and arguments of counsel before him, has no sanction in our law or practice, and is deserving severe reprobation.

The order of a Court of Common Pleas to a justice, to certify up what was-said and contended for the parties before him, under a suggestion of diminution, is not warranted by any law in Ohio.

A writ of error will only bring up the record of a final judgment, and if it appear that the cause is still pending in the court below,-the writ has issued improvidently, and will be quashed.

Error to the Common Pleas. The papers in this cause show,, that,in March, 1832, a certiorari was ordered by the Court of Common Pleas to issue to justice Root, to certify a transcript of *the*judgment and proceedings before him, in a plea of trespass on real estate, between the parties. This writ never issued; but a transcript of the justice’s docket, in a suit between the parties, was filed by the party complaining, with the clerk of the Court of Common Pleas. The *next term of the Common*Pleas, a *diminution of the*record was suggested, (without showing wherein) and an *alias*certiorari ordered to certify a more perfect transcript. This writ issued, and the justice returned an alias transcript, setting forth the claims and contests of the parties when before him, but did not certify it as a transcript of his docket.

The complainant now suggested to the Court of Common Pleas, that the justice, on the trial before him, admitted evidence of the execution of a power of attorney, without calling the subscribing witness, and prayed the court to order the justice to certify that *419. fact. Another alias writ of certiorari issued, returnable forthwith, commanding the justice to certify a more perfect transcript of the record, in this, that he certify 4 that on the trial, the defendant •offered in evidence, a power of attorney, given by one Ab. Reed, and witnessed by two persons, who, at the trial, resided in the township, and that the defendant, without calling the subscribing witnesses, offered to prove the execution of the power, by Reed, which evidence the plaintiff objected to, but the objection was overruled by the justice and the evidence admitted.’ The justice, in his return, certified, that certain objections were made before him, by counsel, &e. that the names of the witnesses were not in the proper place on the power of attorney; he then stated the arguments of ■counsel, and the statements of the parties during the contest before him. The return of the justice was not responsive to the writ of certiorari, nor purport to certify any matter appearing on his docket, but of that which was evidently out of the case.

DeWolf again suggested a diminution, and asked another certiorari, which was issued, commanding the justice to certify—

1. Whether a power of attorney was not given by Goodrich to Reed.

2. Whether Reed was not called by defendant to prove its execution.

3. Whether there were subscribing witnesses to the power, and if so, who they were, and did they reside within his township.

4. Whether they were called to prove the execution of the power, and whether the plaintiff objected to it on account of interest.

5. Whether Reed, the witness, stated in court before he testified that he would save the defendant for costs.

6. Whether the justice overruled the objection to the witness, and permitted him to testify, without calling the subscribing witnesses.

To this writ the justice returned various facts and statements, (evidently not on his docket) as a copy or transcript *from his docket,*varying from all the other former certificates. On this the plaintiff assigned for error-, that Reed was admitted to testify to the execution of the power without calling the subscribing witnesses. And, the Court of Common Pleas reversed the judgment, and set the cause down for hearing. The cause was still pending in the Court of Common Pleas, when this writ of error issued, and is so certified.

*Humphrey*and *Turner,*for the plaintiff in error.

*Bierce,*contra, cited 2 O. *R.*5Ó.

*420By the Court.

The record shows the most perfect burlesque of judicial proceedings we have ever met with. The proceeding in issuing the various writs of certiorari, if authorized by any law of any other state, are evidently without sanction in our laws or practice, and show a course of proceeding before the justice, and in the Court of Common Pleas, deserving the severest reprobation. But, inasmuch as the writ of error in this case has improvidently issued, while the cause is still pending in the Common Pleas, before final judgment, the writ must be quashed, as none other than a final judgment ean be reached on error.