Sims v. McElhannon

Supreme Court of Georgia

Sims v. McElhannon

113 S.E.2d 437, 215 Ga. 808, 1960 Ga. LEXIS 347

CourtSupreme Court of Georgia

DecidedMarch 15, 1960

Docket20809

StatusPublished

Cited by2 cases

This text of 113 S.E.2d 437 (Sims v. McElhannon) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sims v. McElhannon, 113 S.E.2d 437, 215 Ga. 808, 1960 Ga. LEXIS 347 (Ga. 1960).

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Opinion

Candler, Justice.

This court is without jurisdiction to review a case where the bill of exceptions is not filed with the clerk of the court where the case was tried within 15 days from the date of the certificate of the judge. Code (Ann.) § 6-1001; King v. State, 169 Ga. 15 (149 S. E. 650). The bill of exceptions in this case was certified by the trial judge on December 19, 1959, and it appears from the official entry made on the bill of exceptions which the clerk signed that it was not filed in his office until January 6, 1960, which was 18 days after certification by the trial judge. “The official entry made by the clerk of a trial court, as to the date on which a bill of exceptions was filed in his office, imports absolute verity, and cannot be impeached in the Supreme Court by the production of aliunde proof that the bill of exceptions was, in point of fact, filed at an earlier date.” Swafford v. Swafford, 125 Ga. 386 (53 S. E. 959). There is attached to the bill of exceptions in this case a statement by the clerk of the trial court which purports to show that the bill of exceptions was filed in his office on a date earlier than the one shown by his official filing entry on the bill of exceptions; but, since that statement is inconsistent with and contradictory of his signed official filing entry, it will be disregarded and treated as surplusage. Clements v. Collins, 59 Ga. 124. See also Sweat v. Barnhill, 171 Ga. 294 (155 S. E. 18) which holds that the clerk’s official entry of filing in his office of a bill of exceptions cannot be impeached by him since it imports absolute verity. There the clerk by affidavit sought to show that his official entry of filing was, in fact, untrue, and this court held that he could not thus impeach it. Hence the writ of error must be dismissed by this court for want of jurisdiction.

Writ of error dismissed.

All the Justices concur, except Quillian, J., disqualified. Argued February 8, 1960 Decided March 15, 1960 Rehearing denied March 30, 1960. Hamilton McWhorter, George Brooks, Marvin D. Pierce, Jr., for plaintiffs in error. Rupert A. Brown, James W. Arnold, contra.

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Candler, Justice.

This court is without jurisdiction to review a case where the bill of exceptions is not filed with the clerk of the court where the case was tried within 15 days from the date of the certificate of the judge. Code (Ann.) § 6-1001; King v. State, 169 Ga. 15 (149 S. E. 650). The bill of exceptions in this case was certified by the trial judge on December 19, 1959, and it appears from the official entry made on the bill of exceptions which the clerk signed that it was not filed in his office until January 6, 1960, which was 18 days after certification by the trial judge. “The official entry made by the clerk of a trial court, as to the date on which a bill of exceptions was filed in his office, imports absolute verity, and cannot be impeached in the Supreme Court by the production of aliunde proof that the bill of exceptions was, in point of fact, filed at an earlier date.” Swafford v. Swafford, 125 Ga. 386 (53 S. E. 959). There is attached to the bill of exceptions in this case a statement by the clerk of the trial court which purports to show that the bill of exceptions was filed in his office on a date earlier than the one shown by his official filing entry on the bill of exceptions; but, since that statement is inconsistent with and contradictory of his signed official filing entry, it will be disregarded and treated as surplusage. Clements v. Collins, 59 Ga. 124. See also Sweat v. Barnhill, 171 Ga. 294 (155 S. E. 18) which holds that the clerk’s official entry of filing in his office of a bill of exceptions cannot be impeached by him since it imports absolute verity. There the clerk by affidavit sought to show that his official entry of filing was, in fact, untrue, and this court held that he could not thus impeach it. Hence the writ of error must be dismissed by this court for want of jurisdiction.

Writ of error dismissed.

All the Justices concur, except Quillian, J., disqualified. Argued February 8, 1960 Decided March 15, 1960 Rehearing denied March 30, 1960. Hamilton McWhorter, George Brooks, Marvin D. Pierce, Jr., for plaintiffs in error. Rupert A. Brown, James W. Arnold, contra.

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113 S.E.2d 437, 215 Ga. 808, 1960 Ga. LEXIS 347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sims-v-mcelhannon-ga-1960.

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