Pelham Mfg. Co. v. Scaife

• Decision Date: 22 February 1910
• Docket Number: 2,122.
• Parties: PELHAM MFG. CO. v. SCAIFE, Judge.
• Court: Georgia Court of Appeals

67 S.E. 111

7 Ga.App. 446

PELHAM MFG. CO. v. SCAIFE, Judge.

No. 2,122.

Court of Appeals of Georgia

February 22, 1910

Syllabus by the Court.

It is the duty of a judge to certify a bill of exceptions, if the statements of fact contained therein are true, regardless of the merits of the bill of exceptions.

Petition for mandamus by the Pelham Manufacturing Company against J H. Scaife, judge of the city court of Camilla, to compel him to sign a certificate to the bill of exceptions. Mandamus made absolute.

Payne Little & Jones and Colquitt & Conyers, for petitioner.

RUSSELL J.

In answer to the rule nisi served upon him, his honor, Judge Scaife, does not deny that the statements of fact contained in the bill of exceptions pendente lite, which he was asked to certify, are true, though he states that his answer is made "without admitting the facts set out in the bill of exceptions pendente lite." The question arises therefore, whether the answer of the judge shows any reason why he should not sign the certificate to the bill of exceptions as presented to him. The reason assigned by the judge for declining to certify the exceptions pendente lite can best be given in his own language, as contained in his answer to the mandamus nisi: "After this respondent had in reference to the case referred to in said petition for mandamus, held himself to be disqualified to try said case, on motion of the petitioner for mandamus, this respondent vacated the bench, and considered and held all action taken by this respondent in said case as nugatory, and this respondent insists now that all action taken on the part of this respondent, save and except this respondent's holding and ruling on motion of petitioners for mandamus that he was disqualified from presiding in said case, was nugatory, null, and void; and the trial of said case began de novo when Judge A. S. Johnson of the city court of Newton went upon the bench and tried said case as set out. For these reasons, this respondent deeming that no trial had been had before him, and no legal action had been taken before him, save and except as above stated, this respondent's holding and ruling, on motion of petitioners for mandamus, that he was disqualified from presiding in said case, and that the whole proceedings before this respondent, save and except as above stated as to his holding and ruling that he was disqualified to preside in said case, on motion of petitioners for mandamus, were nugatory, and respondent declined to certify any bill of exceptions sued out in reference to any judgment or ruling which this respondent made--there having been no trial before this respondent, and no legal action taken by this respondent, save and except his holding and ruling that he was disqualified to preside in said case, on motion of petitioners for mandamus; the whole case having stood for trial before Judge Johnson just as though this respondent had never been upon the bench for a moment while said case was under consideration."

The only question involved, so far as the action of the judge to whom the bill of exceptions is presented is concerned, is whether the statements contained in the bill of exceptions are true. Necessarily, whether the exceptions are meritorious or not is the full question which the party excepting desires to present to the appellate court and to have reviewed. If the judge can refuse to certify the bill of exceptions because he deems that the points therein raised are without merit, he can thereby preclude the right of the complaining party to have these very issues reviewed.

One of the assignments of error in the present instance is that the judge erred in holding that the judge of the city court of Newton, or any other judge, except a judge of a superior court, was qualified to try the said case under the circumstances. It appears from the statement of the bill of exceptions pendente lite that whether Judge Scaife was disqualified or not Judge Johnson of the city court of Newton actually tried the case to its conclusion, and this is one of the reasons assigned by Judge Scaife in his answer for holding himself disqualified to certify the bill of exceptions pendente lite. And yet, as appears from the bill of exceptions, Judge Johnson came to the bench only at the request of Judge Scaife. Of course, the presentation of the bill of exceptions to Judge Scaife is a waiver of any disqualification upon his part (if there is any) so far as the certification bill of exceptions pendente lite is concerned, and therefore what we have said as to the exception referred to is merely illustrative of all of the exceptions. The ruling in this case must be controlled by the ruling of the Supreme Court in Hall County v. Gilmer, 123 Ga. 174, 51 S.E. 307, in which the writer (then a judge of the superior courts), presiding for Judge Kimsey in Hall superior court, certified exceptions pendente lite to the judgment overruling a demurrer, and at the final termination of the case Judge Kimsey certified to the main bill of exceptions, including the exceptions pendente lite previously certified and appearing upon the record. The Supreme Court approved the practice followed in that case. The merits of the bill of exceptions are not matters to be considered by the judge when the bill of exceptions is presented to him to be certified. He can do only one of two things--certify by signing the certificate and requiring a transcript of the record be transmitted to the court of review, or return it to the counsel for such correction as he may think necessary in order to make it speak exact truth of the matter sought to be reviewed.

Barring three exceptions, which will be hereafter stated, the appellate court, upon an application for mandamus, will not itself consider the merits of the bill of exceptions, though it will decline to make the mandamus absolute if the judge in his answer presents a sufficient reason for not having certified the bill of exceptions. The reason, however, which will justify a trial judge in declining to certify the bill of exceptions, must be something entirely apart from the merits of any question raised in the bill of exceptions. It must be either because the bill of exceptions is presented too late, because...