Cloud v. State

50 Ga. 369

• Court: Supreme Court of Georgia
• Decided: July 15, 1873
• Status: Published

Opinion

1. Where service of the bill of exceptions is made by a party or his attorney, such service must be authenticated by the affidavit of the person perfecting the same, on the original bill of exceptions, or attached thereto. (R.)

2. Where service of the bill of exceptions is made by a sheriff or a constable, the entry thereof by such officer on the original is sufficient evidence of the fact. (R.)

3. Service of the bill of exceptions, by leaving a copy thereof at the office of counsel for defendant in error, is insufficient. (R.)

Bill of exceptions. Service. Practice in tbe Supreme Court. Before the Supreme Court. July Term, 1873.

When this case was called, the Attorney General moved to dismiss the writ of error upon the following grounds:

1st. Because the entry of service upon the original bill of exceptions is signed by the attorney of the plaintiff in error, and there is no affidavit authenticating the same.

2d. Because tbe aforesaid pretended service purports to have been perfected by leaving a copy of tbe bill of exceptions at the office of the Solicitor General.

The only evidence of service upon the bill of exceptions was the following entry:

“ Served the Solicitor General with a copy of this bill of exceptions by leaving the same at his office. January 31st, 1873. (Signed) O. G. Gurley,

Tbe Court sustained the motion and dismissed the writ of error, enunciating the principles contained in the preceding head-notes.

cited Code, sec. 4199; Coleman vs. Ransom & Co., 45 Ga. R., 316; Baber vs. M. & B. R. R. Co., 42 Ga. R., 300. As to return by attorney: Clark vs. Lyon et al., decided January term, 1873.