Morgan v. Greenberg

173 S.E. 236, 48 Ga. App. 498, 1934 Ga. App. LEXIS 110

• Court: Court of Appeals of Georgia
• Decided: February 12, 1934
• Docket: 23327
• Status: Published

Opinion

MacIntyre, J.

1. There appears in the bill of exceptions an affidavit of the party making the service of the bill of exceptions on the attorney for the defendant in error that the same was not served on him personally, but was left at his office with his stenographer, which facts are admitted. In view of the statute making personal service necessary, a motion to dismiss the writ of error must be sustained. Civil Code, § 6160. See also Anderson v. Albany & Northern Ry. Co., 123 Ga. 318 (51 S. E. 342) ; Lyons v. Winter, 129 Ga. 416 (59 S. E. 270) ; Robinson v. Bryson, 45 Ga. App. 440 (165 S. E. 158) ; Robinson v. Penn Mutual Life Ins. Co., 148 Ga. 793 (98 S. E. 463); Cohen v. Blum, 17 Ga. App. 737 (88 S. E. 809); Presley v. Jones, 139 Ga. 814; (78 S. E. 126); Albritton v. Tygart, 139 Ga. 231 (77 S. E. 28) ; Gorman v. Central of Ga. Ry. Co., 141 Ga. 125 (80 S. E. 553).

2. Notwithstanding the further statement in the affidavit, that defendant’s counsel has since that date acknowledged to him that he received the bill of exceptions, would make the service of the bill good, the writ of error must still be dismissed, as it does not affirmatively appear that he received the bill of exceptions within ten days from the certification by the trial judge. Civil Code (1910), § 6160; Rush v. Hill, 117 Ga. 722 (45 S. E. 42); Thompson v. Hays, 123 Ga. 110 (51 S. E. 33); Vickers v. Sanders, 106 Ga. 265 (32 S. E. 102) ; Edmondson v. South Ga. Ry. Co., 115 Ga. 790 (42 S. E. 68).

3. From what is said above, the writ of error must be

Dismissed.

Broyles, C. J., and Guerry, J., concur.