BLECKLEY
C.J.
The
bill of exceptions alleged error in overruling a motion for a
new trial. It was filed in the clerk's office of the
superior court May 20, 1889. A transcript of the record was
certified by the clerk the 10th of August, 1889, and reached
this court on the 13th of August in the same year. The case
was returnable to the October term, 1889, and therefore the
transcript and bill of exceptions arrived here before the
return-day for that term. The clerk below certified that
"all the original papers in this case were not turned
over to me for copying by the defendant's attorney, in
whose hands they were, until July 31, 1889." Upon the
call of the case, counsel for the defendant in error moved to
dismiss the same on the ground that the clerk had not
certified and sent up the record within the time prescribed
by law, and that his failure to do so was caused by the
counsel for the plaintiff in error. In answer to the motion
the counsel stated that "the evidence, questions, and
answers, as written out in full by stenographer,--in all 170
pages, --was approved by Judge FAIN within the time allowed.
The motion for
a new trial was heard before Judge MILNER April 23, 1889, on
this as the brief of evidence; no motion to dismiss being
made. The motion was overruled. On the same day, deponent
went to R. J. McCamy, Esq., counsel for the plaintiffs below,
and for defendant in error, and called his attention to the
decision of the supreme court in the case of Chambers v.
Walker, 80 Ga. 644, (15) [1] and to a subsequent
decision, where the court declined to verify the statements
in the motion for a new trial by examining such a record; and
deponent told McCamy that he was anxious to conform to the
terms of said decision, and apprehensive that his case, if
carried up on such a brief, would not be heard, and that he
proposed to take the record, and carefully prepare a brief
and concise statement of the evidence, and that when done he
would submit it, with the original, to counsel for their
side, and that they could correct or add to this brief, and
agree on it, and that it could, by consent, be substituted
for the other. I told him I would have done the same for him
if the decision had been in my favor. He, I understood,
agreed to this, pointing out to me certain parts of the
record which he wished copied in full; it being that part
where he had to repeat questions to Farrar many times before
he got an answer. I agreed to respect his wishes in this
respect. Under this understanding, I took the testimony, and
worked upon it from time to time, being hindered by neuralgia
from completing it as soon as I wished or desired; and when
it was completed,--that is, my brief of the testimony of July
1, 1889,--I gave it and the original to McCamy to compare,
correct, and approve. In a day or two, he sent it back to my
office, neither corrected nor approved. I then went to see
him. He told me he had not compared the two, but had made
some marks where my report did not accord with his
recollection; that approving it might interfere with a motion
to dismiss he intended to make; that on consultation with his
associate, S. R. Jones, Esq., they had concluded to move to
dismiss the bill of exceptions on the ground now insisted on,
and on any other ground they might find in the record. On his
refusal to examine and approve, I went to the clerk, gave him
the evidence, and urged him to lose no time in making out and
transmitting the record."
The
facts thus stated by counsel for the plaintiff in error are
admitted to be true by counsel for the defendant in error
and the question is whether they are sufficient to warrant
this court in retaining the writ of error, in opposition to
the motion to dismiss it. The act of 1870, p. 46, (Code, §
4272,) declares that "no case shall be dismissed in said
court for want of the certificate of the clerk of the
superior court to, or the time of, the transmission of the
record within the time heretofore...
