Taylor v. Smith

66 S.E. 792, 133 Ga. 638, 1909 Ga. LEXIS 292

• Court: Supreme Court of Georgia
• Decided: December 23, 1909
• Status: Published

Opinion

Pish, C. J.

1. Under the rulings made in Lamp v. Smith, 56 Ga. 589, and Smith v. Craig, 59 Ga. 882, it must he held that the indictment, to answer which a recognizance has been given, constitutes a part of the record of a scire facias brought to recover judgment on the forfeiture of such recognizance.

(a) The rulings made in Colquitt v. Solomon, 61 Ga. 492 (2), upon which the trial judge based his judgment in the present case, in so far as it may he in conflict with said prior rulings, must yield to them.

2. It follows that in a motion to set aside a judgment absolute, rendered in such scire facias, the indictment should be considered as qiart of the record in the scire-facias case.

3. As recognized by the trial judge, it is necessary to allege in an indictment for bastardy, under the Penal Code, §642, that the person accused is the father of the bastard child; a charge that he is the putative father is not sufficient. Hudson v. State, 104 Ca. 723 (30 S. E. 947).

4. A motion to set aside a judgment absolute, rendered in scire facias on a forfeited recognizance, is not a criminal proceeding; and therefore a bill of exceptions assigning error upon the dismissal of such motion on demurrer is not required to be certified within twenty days from the judgment of dismissal.

Judgment reversed.

All the Justices concur.