Fricks v. Cole

Court of Appeals of Georgia

Fricks v. Cole

142 S.E.2d 382, 111 Ga. App. 635, 1965 Ga. App. LEXIS 1046

CourtCourt of Appeals of Georgia

DecidedApril 29, 1965

Docket41261

StatusPublished

Cited by2 cases

This text of 142 S.E.2d 382 (Fricks v. Cole) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Fricks v. Cole, 142 S.E.2d 382, 111 Ga. App. 635, 1965 Ga. App. LEXIS 1046 (Ga. Ct. App. 1965).

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Opinion

Frankum, Judge.

It is the duty of this court to inquire into its jurisdiction, and where it appears that jurisdiction is lacking, the court should dismiss the writ of error, even though the defendant in error has made no motion to dismiss. Personal Credit Corp. v. Goldwire, 88 Ga. App. 125 (76 SE2d 129). Service of a copy of the bill of exceptions on the defendant in error or his attorney after it has been certified by the trial court, or due and legal waiver or acknowledgment thereof by the defendant in error or his counsel is essential to give the appellate court jurisdiction to consider the errors assigned. Code Ann. § 6-911; South Side Atlanta Bank v. Anderson, 200 Ga. 322 (37 SE2d 404). Accordingly, where, as in this case, there is no acknowledgment of service signed by the defendant in error or his attorney attached to the bill of exceptions, nor is there a certificate of service appended thereto, the writ of error must be dismissed. Ray v. Edwards, 106 Ga. App. 270 (126 SE2d 647); Johnston v. First Nat. Bank of Brunswick, 220 Ga. 340 (138 SE2d 670); Warnock v. Woodard, 183 Ga. 367 (188 SE 336); Izlar v. Central of Ga. R. Co., 162 Ga. 558 (134 SE 315).

Wñt of error dismissed.

Bell, P. J., and Hall, J., concur. Parker, Clary & Kent, Horace T. Clary, for plaintiffs in error. Wright, Walther & Morgan, Clinton J. Morgan, contra.

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Frankum, Judge.

It is the duty of this court to inquire into its jurisdiction, and where it appears that jurisdiction is lacking, the court should dismiss the writ of error, even though the defendant in error has made no motion to dismiss. Personal Credit Corp. v. Goldwire, 88 Ga. App. 125 (76 SE2d 129). Service of a copy of the bill of exceptions on the defendant in error or his attorney after it has been certified by the trial court, or due and legal waiver or acknowledgment thereof by the defendant in error or his counsel is essential to give the appellate court jurisdiction to consider the errors assigned. Code Ann. § 6-911; South Side Atlanta Bank v. Anderson, 200 Ga. 322 (37 SE2d 404). Accordingly, where, as in this case, there is no acknowledgment of service signed by the defendant in error or his attorney attached to the bill of exceptions, nor is there a certificate of service appended thereto, the writ of error must be dismissed. Ray v. Edwards, 106 Ga. App. 270 (126 SE2d 647); Johnston v. First Nat. Bank of Brunswick, 220 Ga. 340 (138 SE2d 670); Warnock v. Woodard, 183 Ga. 367 (188 SE 336); Izlar v. Central of Ga. R. Co., 162 Ga. 558 (134 SE 315).

Wñt of error dismissed.

Bell, P. J., and Hall, J., concur. Parker, Clary & Kent, Horace T. Clary, for plaintiffs in error. Wright, Walther & Morgan, Clinton J. Morgan, contra.

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142 S.E.2d 382, 111 Ga. App. 635, 1965 Ga. App. LEXIS 1046, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fricks-v-cole-gactapp-1965.

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