Castleberry v. State

Court of Appeals of Georgia

Castleberry v. State

68 S.E.2d 604, 85 Ga. App. 214, 1952 Ga. App. LEXIS 692

CourtCourt of Appeals of Georgia

DecidedJanuary 8, 1952

Docket33747

StatusPublished

Cited by1 cases

This text of 68 S.E.2d 604 (Castleberry v. State) 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

Castleberry v. State, 68 S.E.2d 604, 85 Ga. App. 214, 1952 Ga. App. LEXIS 692 (Ga. Ct. App. 1952).

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Opinion

MacIntyre, P. J.

1. “It is not only the right but the duty of a reviewing . . court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.” Welborne v. State, 114 Ga. 793, 796 (40 S. E. 857); Davis v. State, 191 Ga. 558 (13 S. E. 2d, 351); Milner v. Sunbeam Heating Co., 44 Ga. App. 221 (2) (160 S. E. 822); Durrell v. White, 198 Ga. 253 (31 S. E. 2d, 461).

2. “The law relative to notice to the opposing party or counsel before certification of a bill of exceptions, or a waiver of such notice, . . did not alter or change the requirements under existing law relative to service, waiver of service, or acknowledgment of service of a bill of exceptions, and there being in this case no return of service of the bill of exceptions upon the defendant in error indorsed upon or annexed to the bill of exceptions, and no waiver of such service or acknowledgment thereof appearing, this court is without jurisdiction to entertain the writ of error, and if the court has no jurisdiction, it will dismiss the writ whenever and however the same may appear. Code (Ann. Supp.), § 6-908.1; Code, §§ 6-911, 6-912; Code, § 24-3635 (Rule 35, Court of Appeals); Mauldin v. Mauldin, 203 Ga. 123 (45 S. E. 2d, 818); Salvation Army v. 11th Hour Service Inc., 77 Ga. App. 196 (47 S. E. 2d, 893); Stepp v. North Georgia Feed & Fertilizer Co., 78 Ga. App. 240 (50 S. E. 2d, 377).” Godwin v. Atlantic Steel Co., 82 Ga. App. 391 (61 S. E. 2d, 155); Hendrix v. Toledious, 80 Ga. App. 160 (55 S. E. 2d, 752); Harper v. Atlanta & West Point R. Co., 204 Ga. 311 (49 S. E. 2d, 513). Applying the foregoing rules of law to the instant case, the following does not constitute service, acknowledgment, or waiver of service of the bill of exceptions as required by law: “The undersigned, Charles C. Pittard, Solicitor of Gwinnett County City Court and attorney of record for the State of Georgia, hereby waives service of the notice of the intention of E. C. Brannon, attorney for D. C. Castleberry, plaintiff in error, to present the brief of the testimony to the trial court for approval as required by law, and all other and further notice of same is hereby waived.”

Writ of error dismissed.

Gardner and Townsend, JJ., concur.

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MacIntyre, P. J.

1. “It is not only the right but the duty of a reviewing . . court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.” Welborne v. State, 114 Ga. 793, 796 (40 S. E. 857); Davis v. State, 191 Ga. 558 (13 S. E. 2d, 351); Milner v. Sunbeam Heating Co., 44 Ga. App. 221 (2) (160 S. E. 822); Durrell v. White, 198 Ga. 253 (31 S. E. 2d, 461).

2. “The law relative to notice to the opposing party or counsel before certification of a bill of exceptions, or a waiver of such notice, . . did not alter or change the requirements under existing law relative to service, waiver of service, or acknowledgment of service of a bill of exceptions, and there being in this case no return of service of the bill of exceptions upon the defendant in error indorsed upon or annexed to the bill of exceptions, and no waiver of such service or acknowledgment thereof appearing, this court is without jurisdiction to entertain the writ of error, and if the court has no jurisdiction, it will dismiss the writ whenever and however the same may appear. Code (Ann. Supp.), § 6-908.1; Code, §§ 6-911, 6-912; Code, § 24-3635 (Rule 35, Court of Appeals); Mauldin v. Mauldin, 203 Ga. 123 (45 S. E. 2d, 818); Salvation Army v. 11th Hour Service Inc., 77 Ga. App. 196 (47 S. E. 2d, 893); Stepp v. North Georgia Feed & Fertilizer Co., 78 Ga. App. 240 (50 S. E. 2d, 377).” Godwin v. Atlantic Steel Co., 82 Ga. App. 391 (61 S. E. 2d, 155); Hendrix v. Toledious, 80 Ga. App. 160 (55 S. E. 2d, 752); Harper v. Atlanta & West Point R. Co., 204 Ga. 311 (49 S. E. 2d, 513). Applying the foregoing rules of law to the instant case, the following does not constitute service, acknowledgment, or waiver of service of the bill of exceptions as required by law: “The undersigned, Charles C. Pittard, Solicitor of Gwinnett County City Court and attorney of record for the State of Georgia, hereby waives service of the notice of the intention of E. C. Brannon, attorney for D. C. Castleberry, plaintiff in error, to present the brief of the testimony to the trial court for approval as required by law, and all other and further notice of same is hereby waived.”

Writ of error dismissed.

Gardner and Townsend, JJ., concur.

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Bluebook (online)

68 S.E.2d 604, 85 Ga. App. 214, 1952 Ga. App. LEXIS 692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/castleberry-v-state-gactapp-1952.

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