Daniel v. Donaldson

56 Ga. 523

Opinion

1. The clerk’s certificate to the bill of exceptions cannot be waived. In its absence, the writ of error will, on motion, be dismissed. (R )

2. The certified transcript of the record cannot be waived. If not forwarded to this court by direction of counsel, the writ of error will, on motion, be dismissed. (R.)

Practice in the Supreme Court. Waiver. Certificate. Record. Before the Supreme Court. January Term, 1876.

This case came up upon what purported to be the bill of exceptions. This paper appeared never to have been filed in the clerk’s office of the superior court. No certificate of the clerk was appended thereto. Upon it was the following agreement :

“ I acknowledge complete service of notice that this bill of exceptions has been signed and certified according to law, and waive copy and all other notice or service; and as this bill contains all the record necessary to a proper hearing of the case, we agree that the case may be heard and determined in and l>v the supreme court on this bill of exceptions alone, without further record or certificate of any officer, and without filing the same in the clerk’s office of Cherokee superior court. This 31st March, 1875.

No transcript of the record was forwarded.

When the case was called, counsel for defendant moved to dismiss the writ of error upon the ground that the paper purporting to be the bill of exceptions was not certified by the clerk, and because no transcript of the record accompanied the same.

The motion was sustained on both grounds.