Akin v. Edmonds, 9543.

• Decision Date: 12 October 1933
• Docket Number: No. 9543.,9543.
• Citation: 171 S.E. 272,177 Ga. 760
• Court: Georgia Supreme Court
• Parties: AKIN. v. EDMONDS et al.

177 Ga. 760

171 S.E. 272

AKIN.

v.EDMONDS et al.

No. 9543.

Supreme Court of Georgia.

Oct. 12, 1933.

Syllabus by the Court.

1. The certificate of the trial judge to the bill of exceptions cannot be amended in this court by changing the date thereof to a different date.

2. When the entries on the original bill of exceptions show that it was served on opposing counsel more than ten days after it was certified by the judge, and opposing counsel acknowledged service, expressly reserving the right to move to dismiss because the bill of exceptions was not served in time, the writ of error will be dismissed.

Error from Superior Court, Miller County; C. W. Worrill, Judge.

Suit between N. H. Akin and J. B. Edmonds and others. To review the judgment, the first named party brings error.

Writ of error dismissed.

N. L. Stapleton, of Colquitt, for plaintiff in error.

W. I. Geer, of Colquitt, for defendants in error.

HILL, Justice.

Counsel for the defendants in error filed a motion to dismiss the writ of error because the original bill of exceptions bears date of January 30, 1933, while service was not perfected on counsel for defendant in error until February 11, 1933. Attached to the bill of exceptions is a supplemental certificate by the trial judge, certifying that, while the bill of exceptions was presented to him on January 30, 1933, he did not in fact sign the certificate until February 8, 1933; that he was away from home for several days following the date of the receipt of the bill of exceptions; that he inadvertently failed to change the date of his certificate; and that his delay in signing was due to no fault or negligence on the part of counsel for the plaintiff in error. An affidavit by counsel to the same effect was filed in this court. In the acknowledgment of service of the bill of exceptions counsel for defendants in error specifically reserved the right to move to dismiss the writ of error.

The Civil Code 1910, § 6160, requires: "Within ten days after the bill of exceptions is signed and certified, the party plaintiff therein shall serve a copy thereof upon the opposite party or his attorney." In Jones v. State, 127 Ga. 281, 56 S. E. 453, this court held: "The certificate of the trial judge to the bill of exceptions cannot be amended in this court by changing the date thereof to a different date. When the entries on the original bill of exceptions disclose that it was filed in the office of the clerk of the trial court more than 15 days after it was...