Bailey & Carney Buggy Co. v. Guthrie

58 S.E. 103, 1 Ga. App. 350, 1907 Ga. App. LEXIS 241

• Court: Court of Appeals of Georgia
• Decided: March 2, 1907
• Docket: 149
• Status: Published

Opinion

Powell, J.

Since we have deemed it unnecessary to elaborate in the opinion the points decided in the headnotes 3 to 5 inclusive, we shall set forth only so much of the facts as are necessary to an understanding of what is decided upon the motion to dismiss the bill of exceptions. The assignment of error is to the overruling of a motion for a new trial, and no evidence is contained in the bill of exceptions, but the brief of the evidence is specified by the plaintiff in error as a necessary part of the record. The certificate of the judge, in addition to verifying the bill of exceptions, certifies that it “contains all of the evidence and specifies all of the record material to a clear understanding of the errors complained of,” and concludes in regular form. The point is made that the certificate, in referring to the evidence, employs the word “contains,” instead of the word “specifies.” The Civil Code, §5534 (Act of 1893) provides: “It shall be the duty of the judge, to whom anjr bill of exceptions is presented, to see that the certificate is in legal form before signing the same; and no failure of any judge to discharge his duty in this respect shall prejudice the rights of the parties by dismissal or otherwise.” Prior to the adoption of this statute compliance with the prescribed form of certificate to a bill of exceptions was mandatory, and a certificate in the form used in the present case would not have been sufficient. Gresham v. Turner, 88 Ga. 160; Lovingood v. Roberts, 89 Ga. 417; Holland v. Van Beil, 89 Ga. 223. Since the adoption of this statute the Supreme Court has, reluctantly at first (see Pusey v Sweat, 92 Ga. 809, and Gregory v. Daniel, 93 Ga. 795), but finally, fully, yielded its assent to the principle that as to everything in the certificate presented by the Civil Code, §5532, except the actual verification of the bill of ■exceptions, the form is directory only. Scott v. Whipple, 116 Ga. 214.

The further point is made, in the motion to dismiss, that "the writ of error is not dated, and there is no way to ascertain whether the writ was signed before the acknowledgment of service ■or not, or to ascertain whether the bill of exceptions was filed in the clerk’s office before acknowledgment of service.” “The presumption is that the different steps taken in having the certificate pigned, service acknowledged, and the bill of exceptions filed, were in their proper chronological sequence.” McCain v. Bonner, 122 Ga. 843. The cases of Vickers v. Sanders, 106 Ga. 266, and Cooper v. State, 121 Ga. 578, holding to the contrary, were expressly overruled in Porter v. Holmes, 122 Ga. 784. Bush v. Keaton, 65 Ga. 296, was decided prior to the passage of the act of 1881, touching this subject-matter. So that the bill of exceptions will not be dismissed; but under our holding as contained in the last three head-notes above, the judgment will bs affirmed on the merits of the case. Judgment affirmed.