Bennett v. Ralf

61 S.E. 887, 4 Ga. App. 484, 1908 Ga. App. LEXIS 452

• Court: Court of Appeals of Georgia
• Decided: July 8, 1908
• Docket: 1104
• Status: Published

Opinion

Hill, C. J.

1. Where the bill of exceptions recites that it was tendered within the time prescribed by the Civil Code, §5539, the writ of error will not he dismissed because the presiding judge failed to certify tlie same within the statutory period, unless it be made to appear that his failure to so certify was caused by some act of the plaintiff in error or his counsel. Acts 1896, p. 45; Moore v. Kelly & Jones Co., 109 Ga. 798 (35 S. E. 168).

2. In computing the ten days within which a hill of exceptions should be served, section 4, paragraph 8, of the Political Code, is applicable, and only the first or last day should be counted. Consequently a bill of exceptions certified on the 11th day of March, 1908, and served on the 21st of March, 1908, is within the ten days prescribed. Rusk v. Hill, 117 Ga. 722 (45 S. E. 42).

3. The failure to pay costs and give bond, or to file a proper pauper affidavit in lieu thereof, in excepting to the judgment of the court below, will not deprive this court of jurisdiction. It is only where it is desired that the bill of exceptions shall operate as a supersedeas that costs must be paid and bond given or pauper affidavit filed. Cummings v. Clegg, 82 Ga. 766 (9 S. E. 1042) ; Perkins v. Rowland, 69 Ga. 661.

4. Where the only assignment of error contained in the bill of exceptions is not alluded to or insisted on in the brief submitted for the plaintiff in error, this court will treat it as having been abandoned. Dicks v. State, 1 Ga. App. 192 (58 S. E. 335); Hines v. State, 2 Ga. App. 383 (58 S. E. 524); Stewart v. Marietta F. & B. Co., 129 Ga. 418 (59 S. E. 231). Judgment affirmed.

In this court a motion was made to dismiss the writ of error, on the following grounds: (1) “Because plaintiff in error failed to present his bill- of exceptions or to file the same within sixty days from the time he claims the alleged error complained of was made by the court below, the ruling and judgment complained of having been made January 7, 1908. The plaintiff in error did not present his bill of exceptions until March 11, 1908, a period of. 64 days having elapsed.” The bill of exceptions recites that it was tendered to the presiding judge within sixty days from the date of the judgment excepted to. (2) “Because plaintiff in error failed to serve defendant in error with a copy of the bill of exceptions within the time prescribed by law, there being eleven days from the time of granting bill of exceptions until acknowledgment of* service by counsel for defendant in error.” The bill of exceptions was certified on March 11, 1908, and served on March 21, 1908. (3) “Because none of the costs in the ease have been paid by plaintiff in error; neither has he filed any affidavit in forma pauperis, as appears of record.”

J. E. Mozley, H. B. Moss, for plaintiff in error. R. N. Holland, contra.