Aetna Insurance Co. v. Olliff Smith

Court of Appeals of Georgia

Aetna Insurance Co. v. Olliff Smith

7 S.E.2d 602, 61 Ga. App. 757, 1940 Ga. App. LEXIS 256

CourtCourt of Appeals of Georgia

DecidedFebruary 27, 1940

Docket27866.

StatusPublished

This text of 7 S.E.2d 602 (Aetna Insurance Co. v. Olliff Smith) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Aetna Insurance Co. v. Olliff Smith, 7 S.E.2d 602, 61 Ga. App. 757, 1940 Ga. App. LEXIS 256 (Ga. Ct. App. 1940).

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Opinion

*758 Broyles, C. J.

The original record transmitted to this court shows that the bill of exceptions was certified by the judge on June 27, 1939. However, the additional parts of the record, transmitted here by order of the judge on the motion of the defendant in error for a diminution of the record, disclose that the bill of exceptions was first certified by the judge on May 31, 1939, and that acknowledgment of service of same was made by counsel for the defendant in error on the same day (May 31, 1939). The bill of exceptions was filed in the office of the clerk of the trial court on July 6, 1939. The defendant in error has filed a motion to dismiss the bill of exceptions on the ground that same was not filed in the office of the' clerk of the trial court within fifteen days from the date of the certificate of the judge. It is well-settled law that a second certificate by the judge to a bill of exceptions can not be considered by this court. When the judge has signed one certificate to a bill of exceptions he has exhausted his power in that regard and can not make a second certificate thereto. And, “where the date of the entry of filing by the clerk of the trial court upon a bill of exceptions, when considered in connection with the date of the judge’s certificate, shows that the bill of exceptions was filed in the clerk’s office [of the trial court] more than fifteen days after it was certified by the judge, the writ of error will be dismissed.” Futch v. Olmstead, 172 Ga. 233 (157 S. E. 277), and cit.; Gibbs v. John Hancock Mutual Life Ins. Co., 35 Ga. App. 505 (133 S. E. 749). Under the foregoing rulings and the facts of the instant ease, the motion to dismiss the bill of exceptions must be sustained. Code, § 6-1001; Gibbs v. John Hancock Mutual Life Ins. Co., supra, headnote 2.

Writ of error dismissed.

MacIntyre and Guerry, JJ.t concur.

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*758 Broyles, C. J.

The original record transmitted to this court shows that the bill of exceptions was certified by the judge on June 27, 1939. However, the additional parts of the record, transmitted here by order of the judge on the motion of the defendant in error for a diminution of the record, disclose that the bill of exceptions was first certified by the judge on May 31, 1939, and that acknowledgment of service of same was made by counsel for the defendant in error on the same day (May 31, 1939). The bill of exceptions was filed in the office of the clerk of the trial court on July 6, 1939. The defendant in error has filed a motion to dismiss the bill of exceptions on the ground that same was not filed in the office of the' clerk of the trial court within fifteen days from the date of the certificate of the judge. It is well-settled law that a second certificate by the judge to a bill of exceptions can not be considered by this court. When the judge has signed one certificate to a bill of exceptions he has exhausted his power in that regard and can not make a second certificate thereto. And, “where the date of the entry of filing by the clerk of the trial court upon a bill of exceptions, when considered in connection with the date of the judge’s certificate, shows that the bill of exceptions was filed in the clerk’s office [of the trial court] more than fifteen days after it was certified by the judge, the writ of error will be dismissed.” Futch v. Olmstead, 172 Ga. 233 (157 S. E. 277), and cit.; Gibbs v. John Hancock Mutual Life Ins. Co., 35 Ga. App. 505 (133 S. E. 749). Under the foregoing rulings and the facts of the instant ease, the motion to dismiss the bill of exceptions must be sustained. Code, § 6-1001; Gibbs v. John Hancock Mutual Life Ins. Co., supra, headnote 2.

Writ of error dismissed.

MacIntyre and Guerry, JJ.t concur.

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7 S.E.2d 602, 61 Ga. App. 757, 1940 Ga. App. LEXIS 256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aetna-insurance-co-v-olliff-smith-gactapp-1940.

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