102 Ga. 786 | Ga. | 1898
When this case was called in its order, counsel for the defendant in error moved the court to dismiss the case, upon the ground that the bill of exceptions was not signed and certified according to law. It appears from an inspection of the bill of exceptions, that the plaintiffs in error filed an equitable petition, with a prayer for injunction against the defendant. The bill of exceptions contains a brief of the evidence in the case, the order of the judge below refusing the injunction, and other matters pertinent to the cause, and is in other respects in the usual form. Following the brief of evidence is the usual form of certificate written out for the signature of the judge, which, however, remains unsigned, but attached is a lengthy certificate signed by the judge, which opens with the assertion that he had declined to certify one bill of exceptions presented in the case, that this one was the second, and that if certifying this one should be declined it might operate to defeat a hearing of the plaintiffs’ case in this court; and he proceeds then to give a brief history of the case, with what he terms such corrections as are deemed absolutely necessary, and also his refusal to certify such parts as can not be corrected. After giving a history of the case, he certifies that a certain affidavit in the bill of exceptions is not a correct and fair brief of the same, and that he expressly declines to certify it as such. He then refers to the assignments of error in paragraph 1 page 17, paragraph 4 page 18, paragraphs 5 and 7 page 19, and declares that they, are not true and correct, and that he declines to certify them as such. He then sets out that no such objection as that set forth in assignment of error paragraph 8 page 19 was made,
Unless the act approved December 18, 1893, which is entitled “An act to regulate the practice before the Supreme Court; to prevent the dismissal of cases thereinupon technical grounds,” etc., applies in a case like this and operates to make the certificate a legal one, confessedly there is no writ of error here, and hence no question that this court can consider. It is provided by our constitution, art. 6, sec. 2, par. 5, that: “The Supreme Court shall have no original jurisdiction, but shall be a court alone for the trial and correction of errors from the superior courts,” etc. The constitution is silent as to the method of submitting cases to this court, but it is operative when it declares that hearings in this court shall be confined to trials of ■errors and corrections of errors committed by the courts named in the paragraph cited; and the meaning is clear that there shall be in this court only trials of alleged errors, which, if found to have been committed, shall be corrected by its judgment. The duty devolved upon the General Assembly to enact such rules and regulations for bringing cases to this court .as, in their wisdom, should best subserve the purposes of its organization. Cases are brought here, not that they shall be again fried in this court, but for the purpose alone, in the language -of the constitution, for a trial of errors alleged to have been ■committed in other courts; and in discharge of the duty imposed, the General Assembly has, from time to time, provided by law the mode and manner in which these alleged errors must be submitted for trial in this court; and a reference to •such enactments will determine whether or not the motion to dismiss shall prevail. Under the method established for the correction of errors by this court, it is apparent that it is the •office of the bill of exceptions to set forth the action of the court
If judges are authorized at all to certify an imperfect bill as partly true and partly false, the important right given to counsel for plaintiffs in error, of having an opportunity to correct the bill to meet the objections of the judge, must be rendered entirely nugatory. If judges had this power, it is possible that in its legitimate exercise statements or assignments found to be more or less objectionable would' be eliminated, and it is possible that where counsel intended to bring to this court for adjudication questions of prime importance, they would find that, for some slight omission or error, only immaterial points Avere certified as true, while the graver matters in issue might have easily been made to conform to the facts of the case by the observance of the statute. It is not attempted nor intended by the act of 1893 to repeal the provisions of the code section heretofore referred to, which provisions are still the law as to what bills of exceptions may be certified, in no Avay conflicting with the requirements of that act.
If this reasoning is correct, two propositions will follow as a matter of laAV: (1) Until the bill is perfected so as to conform to the truth, it can not be certified. Being in an imperfect state and as a whole untrue, it can not come legally to this court, and no certificate shoAving other than its truth can help to bring it here, because it Avould be a direct violation of law. (2) If the bill is true, it is a proper subject-matter for verifi
In verifying the grounds of a motion for a new trial, a practice has grown up on the part of some of the trial judges to certify some of the grounds of the motion to be true and to deny the truth of others; and this court, giving effect to the orders and approval of the judge, considers such only of the grounds as are approved. Without criticising this practice, although much could be said against it, such action by this court can not be held as in any way analogous to the certification of a bill of exceptions, because, while grounds for a new trial must be approved as true before they will be considered here, there is a plain mandate of law requiring bills of exceptions to be true before they are certified and to be certified as true. Unless so certified, there is no writ of error, and hence no jurisdiction in this court to consider the contents of the bill.
Inasmuch as the certificate of the trial judge to the bill of exceptions conveys official information to this court that as it is written the bill is not true; that part of the bill in certain particulars is untrue, and, save those parts which are untrue, the balance is true; and as the law has given this court jurisdiction only to consider bills of exceptions which are certified to be true, the writ of error, on motion of the defendant in error, must be dismissed, and it is so ordered.
Writ of error dismissed.