Southern Ry. Co v. Flemister

• Decision Date: 12 July 1904
• Citation: 120 Ga. 524,48 S.E. 160
• Parties: SOUTHERN RY. CO. v. FLEMISTER.
• Court: Georgia Supreme Court

48 S.E. 160

120 Ga. 524

SOUTHERN RY. CO.

v.FLEMISTER.

Supreme Court of Georgia.

July 12, 1904.

COURTS—RECORDS — CONFLICTING STATEMENTS OF CLERK AND JUDGE—PRESUMPTION—PARENT AND CHILD—EMANCIPATION—EVIDENCE.

1. The clerk of a court of record being the custodian of its records and files, what appears in a transcript of the same, duly certified by the clerk, will be accepted in preference to what appears in a certificate of the judge.

2. But as to matters which transpire during the progress of a trial, or in the conduct of the business of the court, which are not of record or of file, not being in books or documents of which the clerk is the lawful custodian, the statement of the judge will control.

3. Where, therefore, a clerk of such a court certified that no entry appeared on the minutes showing when a given term of the court adjourned, a statement by the judge, in an order overruling a motion to dismiss" a motion for a new trial, and an averment in a duly verified bill of exceptions assigning error upon the refusal to grant a new trial that the motion was filed in term, will be allowed to control.

4. Where no proper evidence is furnished the Supreme Court as to when a term of a trial court adjourned, it will be presumed that the session continued as long as the judge took jurisdiction of matters which could only be considered in term.

5. A father loses the right to sue for and recover the value of his minor child's services by voluntarily releasing his parental control to a third person, or by failing to provide for its maintenance.

6. The evidence demanded a finding that the plaintiff had lost all parental control over his child in both of the ways indicated in the preceding note.

(Syllabus by the Court.)

Error from City Court of Fayetteville; W. B. Hollingsworth, Judge.

Action by Robert Flemister against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Arthur Heyman, J. W. Wise, and A. O.

Blalock, for plaintiff in error.

E. E. Spurlin and J. F. Golightly, for defendant in error.

COBB, J. Robert Flemister sued the Southern Railway Company for damages. The defendant had settled with the plaintiff. A verdict was returned in favor of the plaintiff for the use of his counsel. The defendant excepts to a judgment refusing to grant it a new trial, and the plaintiff by cross-bill excepts to the refusal of the court to dismiss the motion for a new trial.

1-4. The assignment of error in the crossbill of exceptions will be first considered. Applications for new trials must be filed in term, but may be heard in vacation. Civ. Code 1895, § 5484; Jinks v. State, 115 Ga. 243, 41 S. E. 580. The motion for a new trial in the present case was presented to the judge, and rule nisi signed thereon on October 14, 1903. The case was tried on October 13, 1903, and the verdict returned about 10 o'clock p. m. of that day. The question as to whether the motion to dismiss was well taken depends upon whether the court adjourned for 'the term on October 13th. The cross-bill of exceptions recites that "the court was not in session" on October 14th, and that "no business whatever of the court was transacted except signing the rule nisi on movant's motion, " which was presented to the judge "at his place of business, " and the rule nisi signed by him there. In disposing of the motion to dismiss the judge passed the following order: "The within motion to dismiss, after hearing argument, is overruled, it appearing that the motion for new trial was made and filed during the term of court, and while the same was in session, and before adjournment thereof." The main bill of exceptions recites that the motion for a new trial was filed during the term at which the trial was had. In his original certificate to the record the clerk certified that the October term of the court "adjourned October 13, 1903, " adding that all of the facts certified to appeared "from the records and minutes of" the court. This certificate wasdated December 7, 1903. When the case was called for argument in this court, counsel for the railway company filed a suggestion in writing, setting forth that this certificate was erroneous, and attaching to such suggestion another certificate of the clerk, dated June 9, 1904, certifying, in substance that the first certificate was erroneous; that there was no entry or order on the minutes or records of the court showing when the court adjourned; that an inspection of the minutes showed that the term was not adjourned on October 13th, but that the term was open on October 14th, and that orders were passed by the judge on that date as of the October term, and were duly entered on the minutes. Thereafter this court passed an order directing the clerk to certify and transmit to this court "copies of any orders or entries in reference to the adjournment of the October term, 1903, of said court, which appear on Its minutes; and, in the event that no such orders or entries appear, the clerk shall certify to that effect." In response to this order the clerk certified "that there was no order issued by the judge of said city court of Fayetteville adjourning it at the October term, nor does such an order appear on the minutes of said court. It does appear from the minutes that said court was in session October 14th, which was the last day of its session at said term." The sole question is whether the court adjourned on October 13th. Treating the statement made as to the adjournment of the court in the certificate of December 7th as a proper subject-matter for certificate by the clerk, if nothing more had appeared, this court would be bound by that certificate, notwithstanding the judge may have, in certifying to the cross-bill of exceptions, made a contrary statement. The judge's certificate cannot contradict a matter of record duly authenticated by the clerk's certificate. The clerk is the custodian of the records and files in his office, and what they contain properly appears only in a transcript therefrom duly certified by the clerk. See Merritt v. Gill, 59 Ga. 459; Lamb v. State, 73 Ga. 587; Dis-muke v. Trammell, 64 Ga. 428; Smith v. R. Co., 83 Ga. 675, 10 S. E. 361; Adams v. Holland, 101 Ga. 45, 28 S. E. 434; Rushing v. Willingham, 105 Ga. 166, 31 S. E. 154 (1). The clerk's certificate of June 9, 1904, cannot be looked to for any purpose, but, acting upon the suggestion of counsel that the first certificate was erroneous, we directed the clerk to certify, not his conclusions, but copies of any orders or entries...