Davis v. Southern Railway Co.

98 S.E.2d 126, 95 Ga. App. 441, 1957 Ga. App. LEXIS 821

• Court: Court of Appeals of Georgia
• Decided: April 2, 1957
• Docket: 36600
• Status: Published

Opinion

Nichols, J.

Jewel T. Davis brought an action for damages against Southern Railway Company. On December 4, 1956, Judge Durwood T. Pye, Judge, Superior Court, Atlanta Judicial Circuit, sustained certain special demurrers and general demurrers to the petition. On January 3, 1957, the plaintiff tendered her bill of exceptions to Judge Virlyn B. Moore, also a judge of the Atlanta Judicial Circuit, and on January 7, 1957, Judge Durwood T. Pye certified the bill of exceptions without any notation as to when it was tendered to him. Held:

1. Under the decision of the Supreme Court in Capers v. Ball, 211 Ga. 502 (87 S. E. 2d 85), where a bill of exceptions is ■ certified by the trial judge more than 30 days after the date of the judgment complained of it must affirmatively appear that such bill of exceptions was tendered within the time required by law.

Decided April 2, 1957. Endicott & Endicott, Lucian J. Endicott, Mary Carter Endicott, for plaintiff in error. Marshall, Greene & Neely, Edgar A. Neely, Jr., contra.

2. The tender of the bill of exceptions to a judge who did not preside in the case in no way cures the failure to tender the bill of exceptions to the judge who presided in the cause within the proper time. Cornett v. State, 92 Ga. App. 477 (88 S. E. 2d 755).

3. In the present case, where the bill of -exceptions was signed by the judge who tried the cause more than 30 days after the date of the judgment complained of, and it does not affirmatively appear that such bill of exceptions was tendered to him within the time provided by law, this court is without jurisdiction to consider the assignments of error.

Writ of error dismissed.

Felton, C. J., and Quillian, J., concur.