Pusey v. Sweat

• Court: Georgia Supreme Court
• Writing for the Court: LUMPKIN, J.
• Citation: Pusey v. Sweat, 92 Ga. 809, 19 S.E. 816 (Ga. 1894)
• Decision Date: 27 January 1894
• Parties: PUSEY et al. v. SWEAT, Judge.

19 S.E. 816

92 Ga. 809

PUSEY et al. v. SWEAT, Judge.

Supreme Court of Georgia

January 27, 1894

Syllabus by the Court.

1. To be sufficient as a writ of error, the certificate of the judge to the bill of exceptions must conform, in substance to that prescribed in the act of November 11, 1889; and, as the certificate is to be the same where the judge has corrected the bill of exceptions as where no correction is necessary, there ought to be conformity in the letter also but a deviation in the letter alone, if the substance be unaffected, will not vitiate.

2. The judge having inserted a marginal note in the bill of exceptions now under consideration, that note became a part of the bill of exceptions, the same being the means adopted by him to make it conform to the truth; but this did not render necessary or proper the interlineation in the certificate of the words "as changed, modified, and amended by marginal note." These words, however, did not vary or modify, the substantial meaning of the statutory certificate. They should therefore be regarded as surplusage and the judge will not be constrained by mandamus to certify in the exact language of the statute.

Application of W. J. Pusey & Co. for a writ of mandamus to J. L. Sweat, Judge. Denied.

LUMPKIN J.

The bill of exceptions was not certified within 30 days from the date of the decision complained of, which was the overruling of a motion for a new trial. In a separate certificate, however, the judge states facts explaining the delay, which would probably be sufficient to make the certificate in time. It also appeared that the application for the writ of mandamus was not presented to this court on or before the third day of the term, after the refusal of the judge to sign the certificate as presented; and the point was made that, under the twenty-ninth rule of the court, the application came too late. Passing by the questions thus made as being really immaterial to a decision of the application for a mandamus upon its merits, we will undertake to show that, under the facts of the present case, a mandamus absolute should be denied.

It appears from the petition for a mandamus nisi that, when the bill of exceptions was first presented to the judge, he was unwilling to certify it, because, in some respects, it was inaccurate. There being no blank space, either upon the margin or elsewhere, upon which the necessary corrections could be made, he returned the bill of exceptions to counsel for the plaintiff in error, stating his objections, and also setting forth what should be inserted to make it conform to the truth, giving counsel the option either to rewrite the bill of exceptions and make the changes pointed out, or else to copy and return it as it originally stood, but leaving space in which the judge could himself make the needful alterations. The latter alternative was adopted, and accordingly the judge, by a lengthy marginal note, qualified the statements contained in the bill of exceptions, and thus corrected it. The certificate which counsel had prepared was in the statutory form. The judge signed it, after making an interlineation, which caused it to read as follows: "I do certify that the foregoing bill of exceptions is true, as changed, modified, and amended by marginal note," etc. The object of the petition for mandamus was to compel the judge to sign the certificate with the interlineation omitted. To be sufficient as a writ of error, the certificate to a bill of exceptions must conform, in substance, to the prescribed by the act of November 11, 1889; and as, under the terms of that act, the certificate is to be the same as well where the judge has corrected the bill of exceptions as where no correction is necessary, there ought to be conformity in the letter also. Indeed, we have been at a loss to understand why, under the plain and unequivocal requirements of the supreme court practice act, there should ever have been any disposition either on the part of judges or of counsel to make any variation whatever from the form of certificate which that act declares shall be used in all cases. We have had constant occasion to be surprised that there should be any doubt or difficulty in a matter which the statute makes so perfectly simple and plain. Notwithstanding the absolute clearness of the law, however, many able judges and learned lawyers have seen proper, for one reason or another, to change and modify the statutory certificate. In some instances the deviation has been fatal, and we have been compelled to hold that the certificate, as changed, was not a legal writ of error.

In Parker et al. v. Walker et al., passed on at the March term 1891, of this court, but of which no report was made, the writ of error was dismissed on account of interlineation made by the judge in the certificate, the...