Jones v. Smith

Court of Appeals of Georgia

Jones v. Smith

65 S.E.2d 188, 83 Ga. App. 798, 1951 Ga. App. LEXIS 964

CourtCourt of Appeals of Georgia

DecidedMay 3, 1951

Docket33564

StatusPublished

Cited by9 cases

This text of 65 S.E.2d 188 (Jones v. Smith) 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.

Bluebook

Jones v. Smith, 65 S.E.2d 188, 83 Ga. App. 798, 1951 Ga. App. LEXIS 964 (Ga. Ct. App. 1951).

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Opinions

Sutton, C.J.

(After stating the foregoing facts.) The petition of the applicant for mandamus and the answer of the respondent, denying material portions of the petition, raise a question of fact as to whether the bill of exceptions was tendered to the clerk on February 26 to be filed immediately by him on that date, or was to be held by him and filed at a later date during the fifteen-day period from its certification by the trial judge, which is allowed by law for the filing thereof. The Constitution of this State provides that the Court of Appeals shall have jurisdiction for the trial and correction of errors of law from the superior and city courts in all cases in which such jurisdiction has not been conferred by the Constitution upon the Supreme Court. Code (Ann.), § 2-3708. The Court of Appeals is a court for the correction of errors of law only, and has no jurisdiction to hear evidence aliunde the record, or to decide disputed issues of fact. See Dover v. Harrell, 60 Ga. 111; Cooper v. Nisbet, 118 Ga. 872 (45 S. E. 692). The superior court has concurrent jurisdiction with the appellate court of a mandamus proceeding to compel a clerk to sign and transmit a bill of exceptions which has been duly certified by the trial court and either [801]*801may entertain the petition and issue a mandamus nisi; but where it appears from the answer that an issue of fact is involved which will necessitate the hearing of evidence aliunde the record to determine the truth of the case, the superior court, and not the appellate court, is the proper forum. Cooper v. Nisbet, 118 Ga. 872 (supra).

“If any sheriff, clerk, or other officer shall fail to discharge any duty required of him by any provision of this Title, upon petition the appellate court, or the judge of the superior or city court, as the case may be, may compel the performance of such duty by mandamus.” Code, § 6-918. In Duke v. Trippe, 6 Ga. 317, 321, the court in dealing with this statute ruled that the writ of mandamus lies against a judge, clerk, or sheriff who shall refuse or neglect to perform the duties imposed by law; but also held that, “If they act at all however erroneously, they are not . . liable to the process of mandamus.” Here the clerk marked the bill of exceptions filed. It is contended that the filing date as endorsed on the same is erroneous. Therefore, applying the rule as laid down in Duke v. Trippe, supra, the clerk is not liable to the process of mandamus for the alleged erroneous filing date.

Moreover, it may be stated' that, if the clerk took the bill of exceptions from the attorney for the plaintiffs in error with express authority from him to hold the same until some date suitable to the.clerk within the fifteen-day period allowed by law, and within that time filed it, the bill of exceptions was properly filed by the clerk, where done in accordance with such instructions. The applicant here relies on Brinson v. Georgia R. Bank &c. Co., 45 Ga. App. 459 (165 S. E. 321), and Hilt v. Young, 116 Ga. 708 (43 S. E. 76), in which cases it appears that motions for new trials were presented to the clerk at his office for immediate filing and without. further instructions. The effect of these holdings is that when such documents are thus presented to the clerk, nothing else appearing, that is the filing date. In Cooper v. Nisbet, 119 Ga. 752 (47 S. E. 173), it is held in substance that legal filing means, not only that the papers be left in the clerk’s office, but that direction be given the clerk in such manner that he may understand what is desired.

The prayer for mandamus absolute is denied, and the petition [802]*802 is dismissed.

Sutton, C.J., Gardner, Townsend, and Worrill, JJ., concur. Felton, J., concurs in the judgment. MacIntyre, P.J., concurs specially.

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Sutton, C.J.

(After stating the foregoing facts.) The petition of the applicant for mandamus and the answer of the respondent, denying material portions of the petition, raise a question of fact as to whether the bill of exceptions was tendered to the clerk on February 26 to be filed immediately by him on that date, or was to be held by him and filed at a later date during the fifteen-day period from its certification by the trial judge, which is allowed by law for the filing thereof. The Constitution of this State provides that the Court of Appeals shall have jurisdiction for the trial and correction of errors of law from the superior and city courts in all cases in which such jurisdiction has not been conferred by the Constitution upon the Supreme Court. Code (Ann.), § 2-3708. The Court of Appeals is a court for the correction of errors of law only, and has no jurisdiction to hear evidence aliunde the record, or to decide disputed issues of fact. See Dover v. Harrell, 60 Ga. 111; Cooper v. Nisbet, 118 Ga. 872 (45 S. E. 692). The superior court has concurrent jurisdiction with the appellate court of a mandamus proceeding to compel a clerk to sign and transmit a bill of exceptions which has been duly certified by the trial court and either [801]*801may entertain the petition and issue a mandamus nisi; but where it appears from the answer that an issue of fact is involved which will necessitate the hearing of evidence aliunde the record to determine the truth of the case, the superior court, and not the appellate court, is the proper forum. Cooper v. Nisbet, 118 Ga. 872 (supra).

“If any sheriff, clerk, or other officer shall fail to discharge any duty required of him by any provision of this Title, upon petition the appellate court, or the judge of the superior or city court, as the case may be, may compel the performance of such duty by mandamus.” Code, § 6-918. In Duke v. Trippe, 6 Ga. 317, 321, the court in dealing with this statute ruled that the writ of mandamus lies against a judge, clerk, or sheriff who shall refuse or neglect to perform the duties imposed by law; but also held that, “If they act at all however erroneously, they are not . . liable to the process of mandamus.” Here the clerk marked the bill of exceptions filed. It is contended that the filing date as endorsed on the same is erroneous. Therefore, applying the rule as laid down in Duke v. Trippe, supra, the clerk is not liable to the process of mandamus for the alleged erroneous filing date.

Moreover, it may be stated' that, if the clerk took the bill of exceptions from the attorney for the plaintiffs in error with express authority from him to hold the same until some date suitable to the.clerk within the fifteen-day period allowed by law, and within that time filed it, the bill of exceptions was properly filed by the clerk, where done in accordance with such instructions. The applicant here relies on Brinson v. Georgia R. Bank &c. Co., 45 Ga. App. 459 (165 S. E. 321), and Hilt v. Young, 116 Ga. 708 (43 S. E. 76), in which cases it appears that motions for new trials were presented to the clerk at his office for immediate filing and without. further instructions. The effect of these holdings is that when such documents are thus presented to the clerk, nothing else appearing, that is the filing date. In Cooper v. Nisbet, 119 Ga. 752 (47 S. E. 173), it is held in substance that legal filing means, not only that the papers be left in the clerk’s office, but that direction be given the clerk in such manner that he may understand what is desired.

The prayer for mandamus absolute is denied, and the petition [802]*802 is dismissed.

Sutton, C.J., Gardner, Townsend, and Worrill, JJ., concur. Felton, J., concurs in the judgment. MacIntyre, P.J., concurs specially.

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65 S.E.2d 188, 83 Ga. App. 798, 1951 Ga. App. LEXIS 964, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-smith-gactapp-1951.

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