Consolidated Naval Stores Co. v. McPhatter & Gaskins

• Decision Date: 11 April 1918
• Docket Number: 617.
• Citation: 95 S.E. 686,147 Ga. 797
• Parties: CONSOLIDATED NAVAL STORES CO. v. MCPHATTER & GASKINS ET AL.
• Court: Georgia Supreme Court

95 S.E. 686

147 Ga. 797

CONSOLIDATED NAVAL STORES CO. v. MCPHATTER & GASKINS ET AL.

No. 617.

Supreme Court of Georgia

April 11, 1918

Syllabus by the Court.

Service of a bill of exceptions being essential to give the court jurisdiction of the case, and service before the bill of exceptions is certified by the judge being in law no service a writ of error upon which there appears no other service than that effected before the bill of exceptions was certified will be dismissed.

Error from Superior Court, Clinch County; J. I. Summerall, Judge.

Action between the Consolidated Naval Stores Company and the McPhatter & Gaskins Company and others. Judgment for the latter, and the former brings error. Writ of error dismissed.

George J., dissenting.

Travis & Travis, of Savannah, for plaintiff in error.

Hendricks Mills & Hendricks, of Nashville, for defendants in error.

GILBERT J. (after stating the facts as above).

It has been held:

"Where the judge of the superior court signed a bill of exceptions as of a certain date, after the rendition of the judgment to which exception was taken, there is no provision of law for counsel to suggest that such certificate did not speak the truth in this respect." Cordray v. Savannah Union Station Co., 134 Ga. 865, 68 S.E. 697; Grant v. Southern Bell Tel., etc., Co., 145 Ga. 298, 89 S.E. 364(2).

In the cited cases it was held that the trial judge is powerless to make any additional certificate, even for the purpose of determining whether the bill of exceptions was tendered within the time required by law; the signing of the first certificate having exhausted his power. In Jones v. State, 127 Ga. 281, 56 S.E. 422, the court said:

"The motion of the plaintiff in error is to amend the certificate of the judge by substituting a different date. A bill of exceptions cannot be amended except as provided by law. Sections 5570 and 5573 of the Civil Code, providing for the amendment of bills of exceptions, are confined to such imperfections or omissions of necessary and proper allegations as can be cured by or supplied from the transcript of the record. Winn v. State. 124 Ga. 811 . They do not authorize an amendment changing the date of the certificate to the bill of exceptions. Perry v. Higgs, 6 Ga. 43."

This rule may possibly operate harshly in the present case; but the rule is not a new one, and is founded upon logic and reason, a variance from which would be attended by manifold evils. If the judge who tried the case cannot correct the record in this respect, certainly it would not be permissible to correct it on the basis of any other authority. The affidavit of service made by counsel for the plaintiff in error, and entered on the bill of exceptions for the purpose of showing that service on the defendants was made after...