Leak v. Mcdowell
| Decision Date | 28 February 1849 |
| Docket Number | No. 38.,38. |
| Parties | Jeremiah Leak, plaintiff in error. vs. Charles McDowell, defendant. |
| Court | Georgia Supreme Court |
Motion to dismiss the writ of error.
The defendant in error joined issue, with a protestation, and moved to dismiss the writ of error, because the Clerk of the Superior Court did not certify and send up a complete transcript of the record, within the time prescribed by the Act organizing the Supreme Court.
The facts were, the bill of exceptions was filed in the Clerk's office, on the 21st September, 1848, and the certificate of the Clerk attached to the transcript of the record, was dated on the 5th of October, 1848.
S. T. Bailey, for the motion.
McDonald, contra.
By the Court.—Warner, J., delivering the opinion.
In this case, a motion is made to dismiss the writ of error, on the ground that the Clerk of the Court below has not certified and sent up to this Court the transcript of the record and bill of exceptions within ten days, as required by the 4th section of the Act organizing this Court.
The original bill of exceptions was filed in the Clerk's office, on the 21st September, 1848, and the Clerk's certificate to the transcript of the record, bears date on the 5th October, 1848, more than ten days after the filing of the original notice in his office, with the return of service thereon. This is not an open question. In Beall & Scott vs. Powell, (4 Ga. R. 525,) we held, that if the record was not certified and sent up by the Clerk, within the time prescribed by the Act, the writ of error must be dismissed. Let the writ of error be dismissed.
TRANSMISSION WITHIN TEN DAYS. "If the Clerk fails la make out and transmit a copy of the record within ten days from the filing; of the original notice, with entry of service thereon, the writ of error may be dismissed; and the Clerk's certificate must show this fact, and the omission cannot be supplied by aliunde testimony." Turner v. Collins, 8 Ga. 255. And see Beall v. Scott, 4 Ga. 525; Duke v. Trippe, 6 Ga. 317; Jones v. Payne, 41 Ga. 84.
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Picket v. Paine
...transmits the record to the appellate court. See Code Ann. § 24-2729 (Ga.L.1963, p. 368); Code Ann. § 2-3705 (Const. of 1945); Leak v. McDowell, 6 Ga. 264; Duke v. Trippe, 6 Ga. 317; Farrar v. Oglesby, 84 Ga. 188, 11 S.E. 133; Rutherford v. Tidwell, 103 Ga.App. 557, 120 S.E.2d 38; Spivey v.......
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Fetna Cas. & Sur. Co v. Nuckolls
...dismiss the appeal on the ground that the papers had not been transmitted as provided in Code, § 114-710, and cited as authority Leak v. McDowell, 6 Ga. 264; Duke v. Trippe, 6 Ga. 317, 319; Arnold v. Wells, 6 Ga. 380. He also stated in his brief that he thought the Duke case, supra, was the......
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George v. American Credit Control, Inc.
...(Const. of 1945, art. VI, § II, par. 5) and Code, § 6-1301 (Ga.L.1946, pp. 726, 741-repealed by Appellate Practice Act of (1965); Leak v. McDowell, 6 Ga. 264; Duke v. Trippe, 6 Ga. 317; Farrar v. Oglesby, 84 Ga. 188, 11 S.E. 133; Rutherford v. Tidwell, 103 Ga.App. 557, 120 S.E.2d 38; Spivey......
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Aetna Cas. & Sur. Co. v. Nuckolls
... ... papers had not been transmitted as provided in Code, § ... 114-710, and cited as authority Leak v. McDowell, 6 ... Ga. 264; Duke v. Trippe, 6 Ga. 317, 319; Arnold ... v. Wells, 6 Ga. 380. He also stated in his brief that he ... thought the ... ...