Curey v. Hitch

• Decision Date: 31 July 1876
• Court: Georgia Supreme Court
• Parties: Daniel Curey, plaintiff in error. v. Simon W. Hitch, solicitor general, et al., defendants in error.

57 Ga. 197

Daniel Curey, plaintiff in error. v. Simon W. Hitch, solicitor general, et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1876.)

Parties. Service. Practice in the Supreme Court. July Term, 1876.

At the March term, 1872, of the superior court of Coffee county, at the instance of Curey, as prosecutor, the grand jury returned two true bills, one against six defendants for robbery, and one against two defendants for false imprisonment. At the following October term the cases were settled by the prosecutor and the defendants, with the consent of the presiding judge, upon condition that the prosecutor pay all legal costs. In pursuance of this agreement the true bills were quashed. Curey paid to the solicitor general $133 00 as the legal costs. Subsequently, at the April term, 1876, he filed an affidavit stating that he had been charged by the solicitor general too much costs. The solicitor then moved to take the following order, stating the cases: "Whereas, the above stated cases were settled by order of court, at the October term, 1874, and there was a failure to enter judgment against the prosecutor for costs, it is ordered by the court that Simon W. Hitch, solicitor general, do recover from Daniel Curey, prosecutor, the sum of $160 00, and that S. P. Gaskin, clerk, do recover the sum of $40 00, costs, and that the sheriff do recover the sum of $18 00, costs. And it is further ordered that this judgment be entered upon the minutes of this court nunc pro tunc."

To this order Cury filed numerous objections, attacking the amount awarded to each of the aforesaid officers of court. The objections were overruled, and Curey excepted.

The only evidence of service of the bill of exceptions was thefollowing entry:

*"I have this day served a true copy of the withinoriginal bill of exceptions personally upon the defendant. This April 13th, 1876.

(Signed) D. H. Johnson, Sheriff."

Counsel for defendants moved to dismiss the writ of error because all the defendants were not served with the bill of exceptions; and further, because it was impossible for the court to be informed, from the entry, which one was served.

The motion was sustained and the case dismissed.

J. M. Denton; G. J. Halton, by brief, for plaintiff in error.

Simon W. Hitch, solicitor general, by Harrison & Clayton, for defendants.