Hightower v. Hightower

13 Ga. 204

• Court: Supreme Court of Georgia
• Decided: February 15, 1853
• Docket: No. 23
• Status: Published

Opinion

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] This case comes fully under the decision of this Court in Turner vs. Collins, 8 (feo. B. 252. We there held that a writ of error will be dismissed, if a copy is not served and an entry made thereof, within the time required by the 21st rule •of this Court.

[2.] And that the party failing to endorse the entry of service before the writ of error is' filed and transmitted to this Court by the Clerk below, will not be permitted to come here on motion, and the production of original proof aliunde the record, supply the omission.

We felt that we had no discretion to relieve the party from his' own laches in that case. And we shall adhere to the precedent then established.

[3.] It is worthy' of remark- too, that the Legislature at its last session, with the provisions of the 21st rule, and our interpretation of it before them, passed an Act declaring, “ that when the original writ of error, original citation and notice, and the original bill of' exceptions, shall be filed and served within the time prescribed by law, no cause pending in the " Supreme Court shall be dismissed; but any other error or defect, shall be amended instanter. Acts of the General Assembly of 1851-’2, p. 214, 215.

Here is not only a legislative sanction of the writ of error and citation, established by this Court, in its rules, but a legislative, declaration, that if these, together with the notice and bill of exceptions created by the Act of 1845, are filed and served, that all other defects may be instantly amended, and the cause proceed. But these must all be served and filed within the time prescribed by law, that is, the Statute of the State, organizing this Court and its rules; thus evincing as to these particulars, a determination neither to make or allow any relaxation.

The case must be dismissed.