113 Ga. 88 | Ga. | 1901
On December 21, 1900, Judge Smith of the Oconee circuit granted a permanent injunction to restrain a certain sheriff’s sale. The defendants presented to him a bill of exceptions complaining of this judgment, and he signed and certified it on January 5, 1901. In the meantime Judge Smith’s term of office had expired, and his successor had qualified. Under the provisions of section 5540 of the Civil Code, the case was one in which a “ fast ” writ of error was provided for, and it was brought to this court under that section. The defendant in error made, in this court, a motion to dismiss the writ of error, on the ground that at the time of the signing and certifying of the bill of exceptions Judge Smith was no longer judge of the superior court, his term of office having expired, and that he was therefore without authority to certify a “fast” bill of exceptions. After a careful consideration of the provisions of our code upon this subject, we have concluded that the motion to dismiss must be sustained.
Prior to the act of December 16, 1859 (Acts 1859, p. 50), a judge had no authority to sign any bill of exceptions after the expiration of his term of office. By that act it was provided that “ If the term of the judge making the decision shall have expired, or said judge shall have resigned, or been removed, when the bill is presented, then the said judge shall sign said bill, with the order of the clerk, as ex-judge.” By acts previously passed, provision had been made for the certification of bills of exceptions in cases where the judge had died or become otherwise incapable of acting, and also in cases where the signing of the bill of exceptions was delayed beyond the prescribed time by the absence of the judge from home, and without fault on the part of the party tendering. These
Writ of error dismissed.