Hall County v. Gilmer

• Decision Date: 13 June 1905
• Citation: 123 Ga. 173,51 S.E. 307
• Parties: HALL COUNTY. v. GILMER.
• Court: Georgia Supreme Court

123 Ga. 173

51 S.E. 307

HALL COUNTY.

v.GILMER.

Supreme Court of Georgia.

June 13, 1905.

1. Writ of Error — Exceptions Pendente Lite—Certificate of Judge.

Where exceptions pendente lite are filed to the overruling of a demurrer, and are duly certified by the judge whose ruling is complained of, and are entered of record, no further certificate by the judge as to that ruling is required. If the exceptions pendente lite are properly brought to this court in the transcript of the record, error may be assigned thereon in this court, though no complaint be made in the main bill of exceptions of the ruling complained of in the exceptions pendente lite.

2. Same—Dismissal.

Therefore, where a defendant demurred to a petition, and the demurrer was heard and overruled by one judge, and exceptions pendente lite to his ruling were duly presented, certified, filed, and entered of record, and the case referred to an auditor, who found adversely to the defendant, and where, at a subsequent term of court, exceptions to the auditor's report were heard by another judge, and overruled, a writ of error to this court, complaining both of the overruling of the demurrer and the overruling of the exceptions to the auditor's report, duly certified by the judge who heard the latter, will not be dismissed on the ground that it should have been certified by the judge who heard and overruled the demurrer.

3. Same—Certification.

While a judge cannot properly certify to what did not take place before him, he may certify to matters of record in the case before him; and therefore a judge may certify that a bill of exceptions pendente lite was certified, filed, and appears of record in the case, though the ruling complained of by the exceptions pendente lite may have been made by another judge than himself.

4. Sheriffs—Fees—Liability of County.

A county is not liable to its sheriff for his costs, allowed by Pen. Code 1895, § 1107, for conducting prisoners before a judge or court to and from jail, but these costs must be collected by the sheriff from the prisoners after conviction.

(Syllabus by the Court.)

Error from Superior Court, Hall County; J. J. Kimsey, Judge.

Action by M. O. Gilmer against Hall county. Judgment for plaintiff, and defendant brings error. Reversed.

F. M. Johnson, for plaintiff in error.

Dean & Hobbs, for defendant in error.

CANDLER, J. 1-3. This case comes from the superior court of Hall county. It was an action of complaint brought against the county by Gilmer for certain sums alleged to have been due him for services as sheriff of the county. A demurrer to the petition was filed by the county, and this demurrer was heard and overruled by Judge Russell, of the Western circuit, presiding in place of Judge Kimsey. Exceptions pendente lite to the overruling of the demurrer were duly presented, certified by Judge Russell, and filed as part of the record in the case. This was at the January term, 1903, of Hall superior court. At the July term, 1904, of that court. Judge Russell referred the case to an auditor, who, at the January term, 1905, filed his report, which in every important particular was favorable to the plaintiff. The defendant filed exceptions of law to the auditor's report, which were heard and overruled by Judge Kimsey, of the Northeastern circuit. Within the time prescribed by law, the defendant presented its bill of exceptions to Judge Kimsey, complaining of the overruling of its demurrer by Judge Russell, and of the overruling of its exceptions to the auditor's report by Judge Kimsey. The bill of exceptions was certified as true by Judge Kimsey, and the portions of the record specified as material to a clear understanding of the alleged errors, including the exceptions pendente lite, were transmitted to this court. Upon the call of the case here, the defendant in error moved to dismiss the writ of error, because the bill of exceptions excepts to acts of Judge Russell more than 30 days before the bill of exceptions was sued out; because the bill of exceptions should have been presented to Judge Russell, and not to Judge Kimsey; because no litigant should be allowed to join in one bill of exceptions complaints of the acts of two judges, one at one term of court and another at a subsequent term; because the plaintiff in error does not except to the final judgment in favor of the plaintiff against the defendant; and because the bill of exceptions does not plainly specify the errors complained of.

The motion to dismiss is without merit. The only object of exceptions pendente lite is to preserve as part of the record, by means of the certificate of the trial...