McDaniel v. Columbus Fertilizer Co.
| Decision Date | 29 November 1899 |
| Citation | 34 S.E. 598,109 Ga. 284 |
| Parties | McDANIEL v. COLUMBUS FERTILIZER CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Upon a suggestion by counsel here that the clerk of a trial court has made a mistake in certifying as to the date upon which a bill of exceptions was filed in his office, this court will direct the clerk to recertify as to this matter, to the end that the actual truth in regard thereto may be ascertained.
2. Causing a bill of exceptions to be actually placed in the hands of the clerk of a trial court within the time prescribed by law for filing the same in his office is all that is, in this respect, required of a plaintiff in error or his counsel.
3. A verdict finding a tract of land subject to an execution as the property of the defendant therein named cannot be upheld where it appears that he was the owner of only an undivided one-third of the land, and held the same as tenant in common with two other persons, who interposed a claim thereto.
Error from superior court, Taylor county; J. H. Worrill, Judge pro hac.
Action by the Columbus Fertilizer Company against P. E. McDaniel. Judgment for plaintiff. On levy of execution defendant interposed a claim in behalf of his minor children. Judgment finding property subject, and claimant brings error. Reversed.
C. J Thornton and A. A. Carson, for plaintiff in error.
O. M Colbert and Brannen, Hatcher & Martin, for defendant in error.
1. The bill of exceptions in this case was certified January 27 1899. The clerk of the trial court certified upon it that it was filed in his office February 15, 1899. On the call of the case in this court a motion was made to dismiss the writ of error on the ground that the bill of exceptions was not filed in the office of the clerk of the superior court within the time prescribed by law. Thereupon one of the counsel for the plaintiff in error stated in his place that the certificate entered by the clerk on the bill of exceptions did not correctly state the date of the filing, the true date being February 7, 1899, and accordingly requested this court to grant an order directing the clerk below to certify the truth in this regard. Acting upon this request of counsel, this court passed an order of the nature just indicated. This was in accord with the provisions of section 5567 of the Civil Code, which declares that: "No writ of error shall be dismissed in the supreme court of this state on any ground whatever which can be removed during the term of the court to which the said writ of error is returnable, and said supreme court shall give such time, during said term, even to the end of the same, as may be necessary to remove said ground, if it can be removed during the said term." While we could not, of course, accept as evidence the mere statement of counsel, it was undoubtedly not only the right, but the duty, of the court, upon the suggestion that the date named in the clerk's certificate was incorrect, to call upon him to recertify in this regard, to the end that we might have official information from the proper source upon which to predicate action. See, in this connection, Strong v. Railway Co., 97 Ga. 695, 25 S.E. 379, citing approvingly Jones v. Rountree, 96 Ga. 230, 232, 23 S.E. 311.
2. The clerk of the trial court, in response to the order above mentioned, certified that he received the bill of exceptions by mail on the 7th day of February, 1899; that he was at the time sick in bed, unable to attend to any business, and did not get to his office until the 15th of February, and then marked the bill of exceptions "filed of that day, when in truth and in fact it should have been filed on the 7th day of February,...
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