Clarke v. Allen

• Decision Date: 03 April 1917
• Docket Number: (No. 8009.)
• Citation: 19 Ga.App. 652,91 S.E. 1049
• Parties: CLARKE v. ALLEN.
• Court: Georgia Court of Appeals

91 S.E. 1049

(19 Ga.App. 652)

CLARKE

v.ALLEN.

(No. 8009.)

Court of Appeals of Georgia, Division No. 2.

April 3, 1917.

(Syllabus by Editorial Staff.)

Error from Superior Court, Hall County; J. B. Jones, Judge.

Action between M. L. S. Clarke and H. W. Allen. Judgment for the latter, and the former brings error. Writ of error dismissed.

A. C. Wheeler and W. M. Oliver, both of Gainesville, for plaintiff in error. Wm. M. Johnson, of Gainesville, for defendant in error.

PER CURIAM. Motion to dismiss is made in this case on the ground that the judge failed to certify the bill of exceptions within the statutory time.

It is well settled, by numerous decisions of our Supreme Court and of this court, that failure of the judge to certify the bill of exceptions within the time provided by the statute will not cause a dismissal of the case, unless such failure be occasioned by the act of the plaintiff or his counsel. Civil Code, § 6187; Walker v. Equitable Mortgage Co., 100 Ga. 84, 26 S. E. 75 (1); Jones v. State, 100 Ga. 579, 28 S. E. 396 (2); Moore v. Kelly & Jones Co., 109 Ga. 798, 35 S. E. 168 (1); Thomson v. Stephens, 138 Ga. 205, 75 S. E. 136 (1); Nation v. Jones, 3 Ga. App. 83, 59 S. E. 330; Bennett v. Ralf, 4 Ga. App. 484, 61 S. E. 887; Harnage v. State, 7 Ga. App. 573, 67 S. E. 694; Acts of 1896, p. 45.

But the certified facts of this case are similar to those in Parkman v. Dent, 109 Ga. 289, 34 S. E. 559, and Sutton v. Valdosta Guano Co., 115 Ga. 794, 42 S. E. 94. In those cases the writ was dismissed where it appeared that it had been returned by the judge to the movant's counsel for correction and was held out by them for an extended and unnecessary length of time. In this case the writ, though originally presented in time, was returned by the judge to counsel, be cause at the time the writ was handed to him he was engaged in another case; he then making the statement that he would take it up later and consider it as presented on that day. Nearly three months elapsed before counsel for the plaintiff again presented the writ to the judge for his certification, though it is stated in his certificate that on each subsequent Saturday he had held motion court in the town of the residence of said counsel. It thus appearing that there had been ample time to present same in reasonable time, and no cause being shown to the contrary, this court feels compelled to grant the motion to dismiss, and it is ordered accordingly.

Writ of error dismissed.

BROYLES, P. J., and JE...