Arnett v. Gurley & Russell

59 Ga. 666 | Ga. | 1877

Warner, Chief Justice.

When this case was called in its order upon the docket, the defendants in error made a motion to dismiss it, on the ground that the bill of exceptions had not been served on the opposite party, as required by the 1259th section of the Code.

1. It appears from an examination of the bill of exceptions, that there is no entry thereon of service, or acknowledgment of service. The plaintiff in error produced a paper, which was certified by the deputy sheriff of Decatur county to be a true copy of the original bill of exceptions filed in the clerk’s office of said county, and that he had served a true copy .thereof upon the defendants in error on the 18th of June, 1877, the bill of exceptions having been certified by the judge on the 7th of June, 1877. This paper was no part of the record, had not been filed in the clerk’s office of the court below, nor in the clerk’s office of this court, and furnished no legal evidence of the service of the bill of exceptions, which evidence of service must appear on the bill of exceptions, and cannot be shown by aUunde evidence. Coleman vs. Ransome & Co., 15 Ga., Rep., 316.

2. If the paper offered could have been received as legal evidence of service of the bill of exceptions, still it was not served in time, as appears on the face thereof.

Let the writ of error be dismissed.