Spivey v. Nalley

• Decision Date: 15 January 1957
• Docket Number: No. 19537,19537
• Citation: 212 Ga. 810,96 S.E.2d 260
• Parties: Walter E. SPIVEY v. Thelma Burns NALLEY et al.
• Court: Georgia Supreme Court

Page 260

96 S.E.2d 260

212 Ga. 810

Walter E. SPIVEY v. Thelma Burns NALLEY et al.

No. 19537.

Supreme Court of Georgia.

Jan. 15, 1957.

Albert B. Wallace, Edwin S. Kemp, Jonesboro, for plaintiff in error.

O. J. Coogler, Jr., Marion Sams, Atlanta, for defendants in error.

Syllabus Opinion by the Court

MOBLEY, Justice.

The bill of exceptions in this case excepts to an order sustaining a general demurrer to the petition of the plaintiff in error, which order was entered on August 22, 1956, by Judge Frank Guess of DeKalb Superior Court. Thirty days thereafter, on September 21, 1956, the bill of exceptions was submitted to Judge Clarence Vaughn of DeKalb Superior Court. Judge Vaughn entered the following notation upon the bill: 'This bill of exceptions tendered to me, in absence of Judge Guess. This Sept. 21st 1956. Clarence Vaughn, Judge.' On September 24, 1956, Judge Guess certified the bill of exceptions. The defendant in error has made a motion to dismiss the bill of exceptions on the ground that it was not tendered to the trial judge within the required time. Held:

The provisions of the law respecting the procedure to be followed in perfecting appeals to this court are jurisdictional, and unless this court has jurisdiction of a case, it is without power or authority to render a judgment upon review. In Capers v. Ball, 211 Ga. 502, 87 S.E.2d 85, this court clarified the law with respect to the time within which a bill of exceptions must be tendered and held that it must affirmatively appear that the bill of exceptions was tendered within the time provided by law in order to confer jurisdiction upon this court. As to whom the bill should be tendered, Code Ann.Supp. § 6-902 provides that 'Bills of exception shall be tendered to the judge who presided in the cause within 30 days from the date of the decision complained of.' Code, § 6-906 provides: 'If the judge shall be absent from home, or by other casualty shall fail to certify the bill of exceptions within the time specified (and without fault of the party tendering), he may sign and certify as soon as possible, which shall be held and deemed valid.' Thus, where counsel has exercised due diligence and is without fault in failin to tender his bill to the trial court within time, a certification after the required time will be held valid. Is the notation of Judge Vaughn sufficient to excuse the plaintiff in error under the provisions of Code, § 6-906? In our opinion it is not. The notation is that the bill was tendered to Judge Vaughn in the absence of Judge Guess. Where Judge Guess was absent from is not stated. In his certification, Judge Guess did not refer to the matter. He did not state that he was absent from his home or that counsel was without fault in failing to tender the bill to him within the required time. There is nothing whatever in the bill of exceptions to account for the...