Sweatman v. Wall

• Decision Date: 08 August 1900
• Citation: 36 S.E. 954,111 Ga. 871
• Parties: SWEATMAN et al. v. WALL.
• Court: Georgia Supreme Court

36 S.E. 954

111 Ga. 871

SWEATMAN et al. v. WALL.

Supreme Court of Georgia

August 8, 1900

1. Where a case came on for trial, and the judge announced orally from the bench that a motion to dismiss it was sustained, but no order of dismissal, though one had been prepared by defendant's counsel, was signed or entered on the minutes, and at the next term an order was passed reciting these facts, and directing that the original order of dismissal be signed and entered nunc pro tunc, which was done, held that, whether the plaintiffs were or were not bound to except to the action taken at the preceding term within due time thereafter, they cannot maintain a bill of exceptions sued out after the adjournment of the last term, when it is impossible to ascertain therefrom whether exception is taken to what was done at the former term, or to the order directing the signing and entering of the original order of dismissal. This is so because such a bill of exceptions does not comply with the law requiring alleged errors to be plainly and distinctly pointed out.

2. Where a bill of exceptions recites that an order was passed on a specified day, and the record shows that it was passed on a different day, the record will control. Applying this well-established rule to the present bill of exceptions, it does not affirmatively appear that it was tendered within the time required by law.

Error from superior court, Rabun county; J. B. Estes, Judge.

Action by S.C. Sweatman and others against Drew Wall. Judgment for defendant, and plaintiffs bring error. Dismissed.

Crane & McMillan, for plaintiffs in error.

W. S. Parks and H. H. Dean, for defendant in error.

PER CURIAM.

Writ of error dismissed.