Shealy v. McClung & Dykes

50 Ga. 485

• Court: Supreme Court of Georgia
• Decided: July 15, 1873
• Status: Published

Opinion

1. Where the acknowledgment of service on the bill of exceptions antedates the certificate of the Judge thereto, the writ of error will be dismissed. (R.)

2. The acknowledgment of service upon the bill of exceptions cannot be shown to bear a wrong date by aliunde proof. (R.)

3. An acknowledgment “of due and legal service,” and a waiver “of copy and all other and further service,” does not cure a defective service, which arises from the fact of an attempted service before the certificate of the Judge was attached to the bill of exceptions. (R.)

Practice in the Supreme Court. Before the Supreme Court. July Term, 1873.

When the above stated case was called, counsel for defendants moved to dismiss the writ of error for want of service of the bill of exceptions. The certificate of the Judge was dated June 13th, 1873. The only evidence of service was the following acknowledgment:

“We acknowledge due and legal service of the within bill of exceptions, waiving copy and all other and further service. This 12th of June, 1873.

The Court ordered the writ of error dismissed.