84 Ga. 188 | Ga. | 1889
The bill of exceptions alleged error in overruling a motion for a new trial. It was filed in the clerk’s office of the superior court, May 20th, 1889. A transcript of the record was certified by the clerk the 10th of August, 1889, and reached this court on the 18th of August in the same year. The case was returnable to the October term, 1889, and therefore the transcript and bill of exceptions arrived hero before the return day for that term. The clerk below certified that “all the original papers in this case were not turned over to me for copying by the defendant’s attorney, in whose hands they were, until July 31st, 1889.” Upon the call of the case, counsel for the defendants in error moved to dismiss the same, on the ground that the clerk had not certified and sent up the record within the time prescribed by law, and that his failure to do so was caused by the counsel for the plaintiff in error. In answer to the motion, the counsel stated that “.The evidence, questions and answers, as written out in full by the stenographer, in all 170 pages, was approved by Judge Fain within the time allowed. The motion for a new trial was heard before Judge Milner, April 23d, 1889, on this as the brief of evidence, no motion to dismiss being made. The motion was overruled. On the same day deponent went to R. J. McCamy, Esq., counsel for the plaintiffs
The act of 1870, p. 46, (Code, §4272), declares that “No case shall he dismissed in said court for want of the certificate of the clerk of the superior court to, or the time of, the transmission of the record within the time heretofore prescribed by law : provided, said record arrives at said Supreme Court in time to be heard at the term' to which it is by law returnable.” The act of 1877, p. 95 (Code, §4272d), declares: “No case shall be dismissed by the Supreme Court, or the hearing thereof postponed, by reason of a failure of the clerk of the superior court in transmitting the hill of exceptions and copy of the record, or either of them, in any case, to the clerk of the Supreme Court: provided, the bill of exceptions, and copy of the recoid in such cases shall reach the clerk of the Supreme Court before said court shall have finished the circuit to which said case belongs.....” It adds, however (Code, 4272e) : “No person shall he entitled to the benefit of the preceding section who, by his own act or that of his counsel, has been the cause of the delay or failure to send up said bill of exceptions or a copy of the record, by consent, direction or procurement of any kind.” These acts leave in force section 4262, which is as follows : “Within fifteen days from the date of the certificate of the judge, the bill of exceptions shall be filed in the office of the clerk of the court where the case was tried; and in ten days from the date of such filing, it shall be the duty of the clerk to make out a copy of
Writ of error dismissed.