Platen v. Johnson

54 Ga. 455

• Court: Supreme Court of Georgia
• Decided: January 15, 1875
• Status: Published

Opinion

McCay, Judge.

We granted a mandamus to perfect the record in this case, on the idea that the original bill of exceptions was served. It now appears that this was not the case. The record, when it came here, showed that it was offered to be filed in the clerk’s office within the fifteen days fixed by the statute, Code, 4262, after the signing of the certificate. The refusal of the clerk to permit the filing, we have corrected, and under our order, he has sent-up the record. It now appears that the original bill of exceptions, as signed, was never served on the defendant in error within ten days after signature by the judge, as required by section 4259 of the Code. This-is fatal. The only reply to this is that the certificate does not show that the certificate was within thirty days, as required bylaw, and that it was necessary to explain that before the case was completely here. But the whole case goes on the idea that the certificate was made before the offer to file, and the record is here on that assumption. The motion to have the judge correct his certificate by explaining the cause .of the delay, is only to make the record show on its face the facts. This case was not served on the defendant according to law, and must be dismissed. It would be a simple waste of time, paper and official action, to cause the judge to explain the reason of the delay in signing the bill of exceptions when, in fact, if that explanation were now in the certificate, the case would necessarily have to be dismissed, because no notice was given to the defendant in error, as the law requires, within ten days after the signing of the bill of exceptions.

Mandamus refused.