Friedman v. Baxley

110 S.E.2d 684, 100 Ga. App. 242, 1959 Ga. App. LEXIS 586

• Court: Court of Appeals of Georgia
• Decided: September 9, 1959
• Docket: 37773
• Status: Published

Opinions

Carlisle, Judge.

1. There is no provision of law in this State for more than one bill of exceptions. Code (Ann.) § 6-801 et seq. Only that which precedes the judge’s certificate in order of arrangement may be considered as a part of the bill of exceptions. What follows the certificate, if anything, is merely an exhibit to the bill of exceptions and must be identified as such by reference thereto in the bill of exceptions and by appropriate identification by the signature of the trial judge thereon. Roberts v. City of Cairo, 133 Ga. 642, 644 (66 S. E. 938); Green v. Ford, 72 Ga. App. 681, 682 (1) (34 S. E. 2d 913); Flowers v. General Motors Acceptance Corp., 84 Ga. App. 681 (67 S. E. 2d 159); Stewart v. Echols County, 89 Ga. App. 99 (78 S. E. 2d 867).

2. “A bill of exceptions is a formal statement in writing of exceptions taken by a party on the trial to a ruling, decision, charge, or opinion of the trial judge, setting out the proceedings on the trial, the acts of the trial judge alleged to have been erroneous, the objections and exceptions taken thereto, together with the grounds therefor, and authenticated by the trial judge, according to law.” 4 A C. J. S. 696, § 802. Consistent with the foregoing definition of a bill of exceptions, our law provides that it shall specify plainly the decision complained of and the alleged error. Code (Ann.) § 6-901. Strickland v. Strickland, 213 Ga. 588 (100 S. E. 2d 460).

3. In the instant case, the document addressed to this court and to- which the certificate of- the trial judge is appended, on its face purports to be nothing more than an amendment to the “original bill of exceptions,” which amendment recites therein -. that the original bill was tendered on March 19, 1959... This .document merely purports to strike from the original bill of exceptions certain wording thereof and to. substitute therefor new wording embodied in the document,-and to specify additional parts of the record to be sent up. Immediately .following .the aforesaid two-page document, which was signed, by counsel for the plaintiff in error, there: is a purported certificate of the trial judge in which he. certifies “that the bill of exceptions tendered to this court on March 19, 1959, as corrected in conformity with the order of this court, dated April 10, 195.9, is true and contains all of the erddence and specifies all of the record material [and] necessary to a proper understanding of the errors complained of. . . The delay in certifying the bill of exceptions was created by the necessity for making corrections to the original bill of exceptions which corrections have now been made.” This certificate was signed on April 20, 1959, by the Judge of the City Court of Savannah. Following the judge’s certificate, there appear, in order, an acknowledgment of service by counsel for the defendants in error, an entry of filing signed by the clerk of the court, and a certificate signed by the clerk of the court. This latter instrument certifies that the within and foregoing constitutes the true original bill of exceptions as corrected and transmits the document to the Court of Appeals. Following the foregoing documents, which are backed by an ordinary legal document backer bearing the name of the law firm representing the plaintiff in error, there is what purports to be the original bill of exceptions signed by counsel for -the plaintiff in error, • together with certificates of service on opposing counsel and acknowledgment of tender and rule nisi signed by the trial judge to show cause- why the bill of exceptions should not be certified as -true and correct, and following these is a regular certificate of the trial judge to- the bill of exceptions, but unsigned by him. Under these facts there is no bill of exceptions within the meaning and requirements of the law as set forth above. Only such document, or documents, as precede the certificate signed by the trial judge can be considered as a part of the bill of exceptions. The document ■which precedes the certificate signed by the trial judge in this case is wholly insufficient to be considered as a bill of exceptions by reason of the fact that it contains therein no recitation of facts as to what transpired in the trial of the case, no assignment of error and no specification of parties plaintiff in error or defendant in error. There is nothing therein on which the judge’s certificate as to the verity thereof can operate so as to form the basis for a valid writ of error, and accordingly it is wholly insufficient to give this court jurisdiction. Therefore, even though no motion to dismiss has been made, the writ of error must be dismissed. Personal Credit Corporation v. Goldwire, 88 Ga. App. 125 (76 S. E. 2d 129).

Decided September 9, 1959 Rehearing denied September 28, 1959. H. Sol. Clark, Bramen, Clark & Hester, for plaintiff in error. Lewis, Wylly & Javetz, John C. Wylly, contra.

Writ of error dismissed.

Gardner, P. J., and Townsend, J., concur.