Dill v. Taylor

127 S.E. 737, 160 Ga. 234, 1925 Ga. LEXIS 126

• Court: Supreme Court of Georgia
• Decided: April 15, 1925
• Docket: No. 4519
• Status: Published

Opinion

Gilbert, J.

1. The suit was filed in Chattooga County. The rule nisi required the respondents to be and appear at Rome, Eloyd County, Georgia, on May 17, 1924, to answer the prayers of the petition. The judgment upon which error is assigned was dated June 24, 1924, without indicating the county in which it was rendered. The record, however, does not contain any order naming another date or changing the hearing from Eloyd to another county. The motion to dismiss the bill of exceptions alleges that the judgment was rendered in Eloyd County. The plaintiff in error failed to file in this court any response in obedience to the rule nisi requiring her to show- cause why the bill of exceptions should not be dismissed on the ground that the judgment was-rendered in a county other than that where the suit was pending, which as a matter of law showed that the judgment was rendered in vacation. The failure to respond will be construed as an admission of the facts stated in the motion to dismiss. Kemp v. Colonial Trust Co., 147 Ga. 605 (95 S. E. 7); Clements v. Wilkerson, 151 Ga. 467 (107 S. E. 47).

2. “The bill of exceptions must be tendered within thirty days from the date of the decision at chambers.” Civil Code (1910), § 6152; Harrison v. Lyerly Ginneries &c. Co., 155 Ga. 695 (117 S. E. 818).

3. “It must affirmatively appear from the bill of exceptions or the entries thereon, or the record, that the bill of exceptions was presented within the time prescribed by law.” Jones v. State, 146 Ga. 8 (90 S. E. 280).

4. “Where it does not affirmatively appear from the record that the bill of exceptions' was tendered upon a date prior to the date of the judge’s certificate, it will be presumed that the certificate bears the date upon which the bill of exceptions was tendered, and the writ of error will be dismissed if a tender on that date was not within the time required by law.” Jones v. State, supra. The bill of exceptions in this case recites that, it was presented “within the time allowed by law,” but it is dated August 23, 1924. The judgment was rendered June 24, 1924. More than thirty days, therefore, elapsed between the rendition of the judgment and the presentation of the bill of exceptions.

No. 4519. April 15, 1925.

5. The judgment having been rendered at chambers, and the bill of exceptions having been presented to the judge more than thirty days from the date of the judgment, the writ of error, on motion, must be dismissed.

6. Other grounds of the motion will not be decided, since the ruling above announced disposes of the ease.

Writ of error dismissed.

All the Justices concur. Norman Bhattuck, for plaintiff. Benny & Wright, for defendant.