Foster v. McLanahan

180 S.E. 144, 51 Ga. App. 269, 1935 Ga. App. LEXIS 660

• Court: Court of Appeals of Georgia
• Decided: April 3, 1935
• Docket: 24439
• Status: Published

Opinion

Broyles, O. J.

1. The failure of a plaintiff in error to comply with the rules of this court relating to the filing and serving of briefs “is not a ground for the dismissal of a writ of error. Rogers v. Mayers, 3 Ga. App. 69 (59 S. E. 309).” Hines v. Porter, 26 Ga. App. 178 (106 S. E. 16).

Decided April 3, 1935. Rehearing denied May 21, 1935. Winfield P. J ones, Carroll Payne Jones, for plaintiffs. Clarence R. McLanahan, for defendant.

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 Co., 155 Ga. 695 (117 S. E. 818).” Dill v. Taylor, 160 Ga. 234 (2) (127 S. E. 737).

3. In the instant ease, while it does not appear from the bill of exceptions that the judgment complained of was rendered at chambers, the record shows that it was so rendered, and it is well settled that where there is a conflict between the bill of exceptions and the record, the latter controls; and it affirmatively appealing from the bill of exceptions and the record that the bill of exceptions was presented to the judge more than thirty days from the date of the judgment, the bill of exceptions, on motion, must be dismissed. Dill v. Taylor, supra.

Writ of error dismissed.

Muclntyre and Guerry, JJ., concu/r.