Anthony v. Consolidated Film & Supply Co., 7122

7122 | Ga. Ct. App. | Jul 11, 1916

Bbovles, J.

1. Since the passage of the “practice act”-of 1911 (Acts 1911, p. 150, sec. 4), “where counsel acknowledges service upon a bill of exceptions, such acknowledgment shall be held to be a complete waiver - of all defects in the service which the' counsel signing it is legally competent to waive, whether such signing is done before or after the signing of the writ of error, unless counsel in the entry of acknowledgment distinctly and specifically states that it is not to be construed as waiving some particular defect then pointed out by him.” Holloway v. State, 16 Ga. App. 143 (84 S.E. 590" court="Ga. Ct. App." date_filed="1915-03-18" href="https://app.midpage.ai/document/holloway-v-state-5607546?utm_source=webapp" opinion_id="5607546">84 S. E. 590). In the instant case service on the bill of exceptions was acknowledged on November 24, 1915, and the bill of exceptions was signed and certified on November 25, 1915, but in the entry of acknowledgment of service there was no reservation of any right to object to any defects in the service, nor was any defect therein specifically pointed out by counsel acknowledging such service. Under the particular facts of this case, there is no merit in the other grounds of the motion to dismiss the bill of exceptions.

Decided July 11, 1916.

Certiorari; from Terrell superior court — Judge Worrill. November 17, 1915.

B. B. Jones, for plaintiff in error. M. p. Edwards, A. M. Schwarz, contra.

2. An incomplete answer to a writ of certiorari can be perfected in one way only, to wit, the party dissatisfied with the answer must comply with the provisions of section 5196 of the Civil Code.- Ford v. Toomer, 116 Ga. 795 (43 S.E. 45" court="Ga." date_filed="1902-12-12" href="https://app.midpage.ai/document/ford-v-toomer-5572204?utm_source=webapp" opinion_id="5572204">43 S. E. 45). Such an'answer can not be perfected, after the case is called for a hearing in the superior court, by a so-called traverse of the answer, which on its face shows it to be really exceptions to the answer. Under this ruling the “traverse” to the answer of the magistrate in this case should have been stricken on the motion of the plaintiff in certiorari.

3. The judge of the superior court erred in overruling the certiorari.

Judgment reversed.