Smith v. Mitchell

6 Ga. 456

• Court: Supreme Court of Georgia
• Decided: March 15, 1849
• Docket: No. 62
• Status: Published

Opinion

Per Curiam.

Nisbet, J.

delivering the opinion.

[1.] The assignment cannot enlarge the bill of exceptions, an d ns in this case, it states a material fact, to wit: that the request to poll the Jury was made before the verdict was recorded, which does not appear in the bill, that statement must be stricken out of it.

In the descriptive part of the bill, and also of the writ of error, Cunningham is stated to have been a party to the cause below. The record shows that he had been a party, but had been dismissed by order of .the Court. He was not a party when the cause was tried below. In the writ of error, and in the citation, he is not made a party — the only parties are Mitchell, Smith arid Shorter. In this the pleadings all agree; the variance is immaterial, and the pleadings might be amended so as to conform literally, if necessary.

[2.] The notice of the signing and certifying of the -bill, is not signed by any one. There is an acknowledgment of service on it by the defendant in error — it states the case truly and comes up with the record. That this is notice in fact, may be conceded, but it is not legal notice. To be so, it must be signed by the plaintiff in error or his counsel. As this objection is now madfor the first time, we will not dismiss this cause, but in future a notice, to be valid, must be signed.