Smith v. McKnight Bros.

113 S.E. 48, 28 Ga. App. 732, 1922 Ga. App. LEXIS 811

Opinion

Bkoyles, O. J.

1. “Under the rulings in Westfield v. Mayor &c. of Toccoa, 80 Ga. 735 (6 S. E. 471), and Advance Lumber Co. v. Moreland, 132 Ga. 852 (65 S. E. 86), a mere statement entered on a bill of exceptions, and signed by counsel for plaintiff in error, to the effect that he has served a copy of the bill of exceptions by delivering it to counsel for defendant in error, with, no official entry of service or affidavit thereof as provided by the statute, is not sufficient; and a case brought up by such bill of exceptions will be dismissed on motion.” Anderson v. Humphries, 140 Ga. 368 (78 S. E. 1079).

2. “ The appearance in this court of counsel who represented the party in whose favor the judgment was rendered in the court below, and the making by him of a motion to dismiss the writ of error for want of service, among other grounds, does not operate as a waiver of service or an agreement for the case to proceed, under the Civil Code, § 6160, par. 3.” Anderson v. Humphries, supra.

3. Applying the preceding rulings to the instant case, there was no service of the bill of exceptions, or waiver thereof: and, such service or waiver being essential to give this court jurisdiction of the case (Swint v. Brown, 21 Ga. App. 624, 94 S. E. 816, and cases cited), that portion of rule 23 of this court (Civil Code of 1910, § 6347) which provides that “ no motion to dismiss a writ of error will be considered unless notice of such motion and of the grounds thereof, in writing, be given to counsel for plaintiff in error twenty-four hours before the case is called for argument,” does not apply, but the case is controlled by the last sentence of the rule, to wit, “ If the court has no jurisdiction, it will dismiss the writ whenever and however this may appear.” Seliger v. Coker, 105 Ga. 512 (2) (31 S. E. 185).

Writ of error dismissed.

Luke and Bloodworth, .JJ., concur.