Colquitt v. Solomon

61 Ga. 492

• Court: Supreme Court of Georgia
• Decided: August 15, 1878
• Status: Published

Opinion

Bleckley, Justice.

1. Whatever precedes the judge’s certificate, though called an exhibit, is a part of the bill of exceptions, and may be verified by the certificate alone. 48 Ga., 566; 58 Ga., 346. What follows the certificate as an exhibit, is an exhibit proper, and must be identified, as indicated by the tenth rule of this court (38 Ga., 689), by the judge’s signature upon the same. Such identification, strictly speaking, was requisite, even before the rule called for it in express terms. 13 Ga., 495. The case in 10 Ga., 1, was decided on its own special facts, and the court intimated an opinion against its being taken as a precedent on the fourth point ruled. See the caution on page 5.

2. A scire facias brought by the state to recover judgment on a recognizance as forfeited, does not so draw to it the recognizance, the indictment, and the preliminary affidavit and warrant, of file in the clerk’s. office, as to make them a part of the record in the scire facias case, and thereby fit them to come to this court in the transcript without other identification than what results from the usual certificate of the clerk annexed to the transcript. At least, this is so on the question of whether they were the identical papers offered in evidence on the trial of. scvre facias.

3. To review a judgment when the assignment of error is, that “the court erred in rendering judgment in favor of said defendant, under the evidence in said case,” it is necessary to have the evidence here; and to be here, it must come duly authenticated.

4. The following statement as to the modes of bringing evidence to this court, except the rigor of strict law be softened by consent of parties or their counsel, and except where documents, by reason of being copied in or annexed to the pleadings, must necessarily come up as a part of the record, is exhaustive, and may be deemed correct in every particular.

(a) If no motion for a new trial. Incorporate the evidence in the bill of exceptions somewhere. It may be the first thing, or the last thing before the judge’s certificate, or it may come in at any intermediate place. Or, let it follow the judge’s certificate as an exhibit, referring to it as such in the bill of exceptions, and having the judge to place his signature to or upon the exhibit to identify it as the same to which the bill of exceptions refers.

(5) If a motion for a new trial. Pursue either of the foregoing methods, just as if there had been no motion ; or simply refer, in the bill of exceptions, to the brief of the evidence approved and filed on the motion for a new trial, leaving the clerk to send up a copy of the brief in the transcript. To make the brief a- part of the record, so as to fit it for' appearing in the transcript, it .must be expressly approved by the judge, and filed with the clerk, or in his office. The evidence of approval is either an entry on the brief to that effect, signed by the judge, or an express affirmation in the bill of exceptions that it was approved. The evidence of filing is either the usual eutryof the clerk, regularly signed, or'else something in the bill of exceptions or in the record, or in both compared, from which filing can be inferred with certainty.

Writ of error dismissed.