Henry v. Gillis

Supreme Court of Georgia

Henry v. Gillis

50 S.E.2d 73, 204 Ga. 397, 1948 Ga. LEXIS 460

CourtSupreme Court of Georgia

DecidedOctober 13, 1948

Docket16367.

StatusPublished

Cited by9 cases

This text of 50 S.E.2d 73 (Henry v. Gillis) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Henry v. Gillis, 50 S.E.2d 73, 204 Ga. 397, 1948 Ga. LEXIS 460 (Ga. 1948).

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Opinion

Duckworth, Chief Justice.

1. The notice required under the act of 1946 (Ga. L. 1946, pp. 726, 735; Code, Ann. Supp., § 6-908.1) of intention to present to the judge for approval a bill of exceptions is for the purpose therein stated, of affording an opportunity to the opposite party to be heard as to whether or not it is correct. That statute has no relation to the law (Code, § 6-911), requiring service of the bill of exceptions within 10 days after it is certified, which is necessary to confer jurisdiction upon the Supreme Court of the person of the defendant in error, and thus cause the judgment of such court to be constitutionally binding upon him, since he will have had notice and opportunity to be heard. Compliance with one does not satisfy the other. Nor would an acknowledgment of notice, which by its terms clearly relates to the former, satisfy the latter because of the provisions of the Code, § 6-912. In such an acknowledgment the words, “notice, waived and acknowledged,” must be construed to refer solely to the notice required under the Code, Ann. Supp., § 6-908.1.

2. On application of the law as thus construed to the only entry of service upon the present bill of exceptions — which is as follows: “Notice of presentation of the within and foregoing bill of exceptions is hereby acknowledged. The bill of exceptions is hereby approved as correct and complete as to the averments of fact therein, and all other and further notice is hereby waived,” such acknowledgment being dated July 20, 1948, and the certificate of the judge approving the bill of exceptions *398 being dated July 22, 1948 — it must be held that there has been no service of the bill of exceptions, and for this reason it must be dismissed. Mauldin v. Mauldin, 203 Ga. 123 (45 S. E. 2d, 818).

No. 16367. October 13, 1948. D. N. Brown and H. Alonzo Woods, for plaintiff. N. G. Beeves Jr., and J. Carlton Warnock, for defendants.

Writ of error dismissed.

All the Justices concur, except Bell, J., absent on account oj illness.

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Duckworth, Chief Justice.

1. The notice required under the act of 1946 (Ga. L. 1946, pp. 726, 735; Code, Ann. Supp., § 6-908.1) of intention to present to the judge for approval a bill of exceptions is for the purpose therein stated, of affording an opportunity to the opposite party to be heard as to whether or not it is correct. That statute has no relation to the law (Code, § 6-911), requiring service of the bill of exceptions within 10 days after it is certified, which is necessary to confer jurisdiction upon the Supreme Court of the person of the defendant in error, and thus cause the judgment of such court to be constitutionally binding upon him, since he will have had notice and opportunity to be heard. Compliance with one does not satisfy the other. Nor would an acknowledgment of notice, which by its terms clearly relates to the former, satisfy the latter because of the provisions of the Code, § 6-912. In such an acknowledgment the words, “notice, waived and acknowledged,” must be construed to refer solely to the notice required under the Code, Ann. Supp., § 6-908.1.

2. On application of the law as thus construed to the only entry of service upon the present bill of exceptions — which is as follows: “Notice of presentation of the within and foregoing bill of exceptions is hereby acknowledged. The bill of exceptions is hereby approved as correct and complete as to the averments of fact therein, and all other and further notice is hereby waived,” such acknowledgment being dated July 20, 1948, and the certificate of the judge approving the bill of exceptions *398 being dated July 22, 1948 — it must be held that there has been no service of the bill of exceptions, and for this reason it must be dismissed. Mauldin v. Mauldin, 203 Ga. 123 (45 S. E. 2d, 818).

No. 16367. October 13, 1948. D. N. Brown and H. Alonzo Woods, for plaintiff. N. G. Beeves Jr., and J. Carlton Warnock, for defendants.

Writ of error dismissed.

All the Justices concur, except Bell, J., absent on account oj illness.

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50 S.E.2d 73, 204 Ga. 397, 1948 Ga. LEXIS 460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henry-v-gillis-ga-1948.

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