The Cent. R.R. Co. v. Melson

• Decision Date: 28 February 1879
• Citation: 63 Ga. 84
• Court: Georgia Supreme Court
• Parties: The Central Railroad Company. v. Ferguson & Melson.

63 Ga. 84

The Central Railroad Company. v. Ferguson & Melson.

Supreme Court of the State of Georgia

(February Term, 1879.)

Practice in the Supreme Court. New trial. Before Judge HILLYER. Clayton Superior Court. March Term, 1878.

*When this case was called, a motion to dismiss the writ of error was submitted, because properly returnable to the last August term of this court. The bill of exceptions disclosed that it was tendered to the presiding judge on June 8, 1878. and sighed on the 18th of the following month, he certifying (that the delay was unavoidable. It was filed in the clerk's office four days after it was signed, on the 22d of July. The next day-was the return clay to the last August term of this court. It was filed in 1 he clerk's office here on September 9, following.

The motion was overruled, as will appear from the first head-note.

A report of the facts would illustrate no principle of law, and is therefore omitted

Speer & Stewart; Waterson & Stewart; H. C. Peeples, for plaintiff in error.

Tigner & Hodnett; E. W. Beck, for defendants.

Bleckley, Justice.

1. The motion to dismiss the writ of error must fail. It was not the fault of party or counsel that the bill of exceptions was not sooner certified and signed. The tender to the judge was in due time, and he certifies that the delay to sign was unavoidable. The statute gives fifteen days for filing in the clerk's office from the date of the judge's certificate, and here the actual filing was within four days, so there was even more than needful diligence at this stage. The clerk's duty then began as to preparing the transcript, and had to be performed within ten days. Code, § 4262. But it was only one day from the time of the filing until the return-day of this court. Nothing is more clear than that it was not incumbent upon anybody to have the case here on that day, and in point of fact it did not arrive until the term had progressed for some four weeks. What was to be done with it? Section 4265 of the Code answers the *question, by directing it to be docketed for the next succeeding term, and this was the course pursued.

2. The action was for the value of cotton alleged to have been delivered for transportation, and not shipped nor accounted for. The plaintiff recovered, and a motion for a new trial was made and overruled. The grounds of the motion are resolvable into the general complaint that the verdict was wrong under the evidence. It is urged that neither delivery to the railroad...