State Dept. of Revenue v. McCray
| Decision Date | 11 February 1960 |
| Docket Number | No. 20653,20653 |
| Parties | STATE DEPARTMENT OF REVENUE v. McCRAY et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
An appellate court should take judicial notice of the time in which an application for mandamus nisi to require a trial judge to certify a bill of exceptions is pending in the appellate court, in determining whether or not there has been an unreasonable delay by the litigant in retendering the bill of exceptions to the trial judge.
Eugene Cook, Atty. Gen., Ben F. Johnson, Jr., Deputy Asst. Atty. Gen., for plaintiff in error.
B. C. Gardner, Jr., Smith, Gardner, Kelley & Wiggins, H. G. Rawls, D. C. Campbell, Jr., Albany, for defendant in error.
The bill of exceptions of the State Department of Revenue was dismissed by the Court of Appeals because of the lapse of 36 days between the time it was returned by the trial judge for correction and the time it was retendered to the trial judge for certification. In its opinion the Court of Appeals held: 'Assuming, as stated by counsel for the plaintiff in error in their brief, that the delay in retender of thirtysix days was caused by the pendency of their application for a mandamus nisi which was denied by this court on March 9, 1959 (Georgia State Department of Revenue v. Gray, 99 Ga.App. 244, 108 S.E.2d 182), and by difficulty in obtaining certain necessary records from the State Board of Workmen's Compensation, these facts do not affirmatively appear in the judge's certificate and under the above ruling of the Supreme Court [White v. Griggs, 214 Ga. 392, 104 S.E.2d 890], the writ of error must be dismissed.' State Dept. of Revenue v. McCray, 100 Ga.App. 57, 109 S.E.2d 864, 865.
In White v. Griggs, supra, this court held that 'the longest time a party has from the date a vill of exceptions is returned to him for correction or completion during which he may retender it is no more than the period allowed by law (30 days) for the tender of the original bill of exceptions, unless a longer time should be given for providential cause or imperative necessity; and when a delay of more than thirty days in retender is thus caused, that fact must affirmatively appear in the judge's certificate.' [214 Ga. 392, 104 S.E.2d 891.]
In Henry v. Crabtree, 100 Ga.App. 91, 110 S.E.2d 88, 93, the Court of Appeals did not dismiss the writ of error although there had been a period of more than 30 days between the time the bill of exceptions was returned for correction and its final retender to the trial judge, because successive applications for mandamus nisi had been made to the Court of Appeals, and it was held that the time 'should be tolled during the amount of time the mandamus was in the exclusive control of this court and not of the litigants or the trial court.' It was stated in the opinion that the fact that 30 days did not elapse between any ruling of the trial court and a tender or retender of the bill of exceptions affirmatively appeared in...
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