Coulson v. State
| Decision Date | 11 August 1913 |
| Docket Number | (No. 4,425.) |
| Citation | 78 S.E. 1108,13 Ga.App. 148 |
| Parties | COULSON. v. STATE. |
| Court | Georgia Court of Appeals |
(Syllabus by the Court.)
A statement in a bill of exceptions that certain specified exceptions pendente lite were duly certified by the court, and duly filed and entered on the minutes of the court, must beaccepted as true, and cannot be impeached by the reviewing court, although the exceptions pendente lite referred to are not in the record, and although the clerk of the lower court, in answer to an order requiring him to certify and send up the exceptions pendente lite, certifies that no such exceptions pendente lite are of file or entered on the minutes, that if any such were filed they have not been recorded, and are not now of file, and that he has no recollection that any were filed and no record of any having been filed.
[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2894-2896; Dec. Dig. § 1111.2-*]
Rulings upon the sufficiency of the pleadings are not proper subject-matter for a motion for a new trial.
[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2137-2145; Dec. Dig. § 918.*]
While the judge of the city court of Fitzgerald is authorized, in his discretion, to hold special terms of that court, and has the same power that judges of the superior courts have in that respect, still the power of the judge of the city court of Fitzgerald to keep a term of his court open, by adjournment, from one day until another, does not extend beyond the next regular term, since otherwise two terms of the same court could be held at the same time. Consequently the court erred in sustaining a demurrer to a plea to the jurisdiction, setting up that the court was being held at an unauthorized time, that it had no authority to adjourn the term to a day in July, subsequent to the time for holding the regular June term, and that because of the lack of such authority, the May term expired prior to the fourth Monday in June.
[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 231-242; Dec. Dig. § 66.*]
Since the plea to the jurisdiction and the objection to the jurors should have been sustained, the subsequent verdict and judgment were void.
[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 14, 14 1/2; Dec. Dig. § 11.*]
Error from City Court of Fitzgerald; E. Wall, Judge.
Anna Coulson was convicted of crime, and brings error. Reversed.
Elkins & Wall, of Fitzgerald, for plaintiff in error.
Alex J. McDonald, Sol., of Fitzgerald, for the State.
RUSSELL, J. [1] In the brief of the solicitor of the city court of Fitzgerald the point is made that there is no proper exception to the sustaining of the demurrer mentioned in the bill of exceptions and the striking of the plea of the defendant, for the reason that the defendant failed to file exceptions pendente lite. As appears from the record, the point presented by the exceptions to that judgment is the controlling issue in the case, and yet, if not properly presented by the exceptions pendente lite, it is not before this court for consideration; for this court cannot deal with the point as a ground of the motion for a new trial. Treating the brief of the counsel for the defendant in error as being in the nature of a suggestion of a diminution of the record, this court passed an order requiring the clerk of the city court of Fitzgerald to complete the record by certifying and sending up to this court the bill of exceptions pendente lite, which it was certified in the main bill of exceptions had been duly certified and filed. In response to this order the clerk of the city court of Fitzgerald certifies that
In spite of the certificate of the clerk we cannot sustain the contention of counsel for the state that the question as to the correctness of the court's ruling in sustaining the demurrer and striking the defendant's plea is not before the court for consideration. It is of course well settled that in case of conflict between the statements of the bill of exceptions and the record, the record will control; but, so far as we are aware, this rule has not heretofore been, nor do we think it should be so, extended as to include statements of fact in the bill of exceptions certified to by the presiding judge, as to which the record is silent. In such cases as that now before us it is not an instance of conflict between the recitals of the bill of exceptions and the record, but merely a case in which the recitals of the bill of exceptions are not corroborated by the record. In other words, the record does not contradict a single recital contained in the bill of exceptions; and though, on the other hand, it does not affirm these recitals, this same condition would obtain in the case of any writ of error in which certain recitals of the bill of exceptions might be deemed sufficiently full to dispense with the specification of a particular portion of the record as unnecessary to be transmitted to this court. If the exceptions pendente lite, when transmitted as a part of the record, had evidenced or developed conflict with the recitals in the bill of exceptions, as to the time of filing or as to the subject-matter of the exceptions, or as to any material matter, the record would control, but the mere fact that no exceptions pendente lite appear in the transcript of the record as transmitted does not even suggest a conflict, nor offer occasion for surmise that perhaps no exceptions pendente lite were in fact ever filed. The suggestion that none were ever filed (like a speaking demurrer) must necessarily have its origin in something dehors the record, and the recitals of a bill of exceptionsverified by the certificate of the presiding judge, if indeed they can be contradicted at all, cannot be impeached in this way.
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Mills v. Stephens
...law at least five days before the April monthly term, 1914. The identical question was raised and was ruled upon in Coulson v. State, 13 Ga. App. 148 (3), 152, 78 S. E. 1108, in which we held that the judge of a city court has no power to keep a term of his court open by adjournment from on......
- Coulson v. State