116 Ga. 134 | Ga. | 1902
A petition for mandamus and injunction by Jelks and others against Holder and others, composing the board of education of Pulaski county, and Sanders, county school commissioner, was presented to his honor D. M. Roberts. He granted an order requiring the defendants to show cause, on the 3d day of February, 1902, why the writ of mandamus should not issue. There was a postponement of the hearing until February 5. On that day “the said case came up for a hearing, and was heard and. tried” upon the petition, a demurrer and answer thereto which had been filed by the defendants, and upon evidence submitted by both sides. The judge passed an order overruling the demurrer, and directed that the case be returned to the ensuing February term of the court, on the ground that it involved issues of fact which should be passed upon by a jury.' The defendants excepted pendente lite
Section 4874 of the Civil Code reads as follows: “ Upon refusal to grant the mandamus nisi, petitioner may have his bill of exceptions to the Supreme Court, as in cases of the granting and refusing injunctions, and either party dissatisfied with the judgment on the hearing of the answer to the mandamus nisi may likewise file his bill of exceptions.” This section was codified from the act of September 26,1883, “to fix the time and method of trial in cases of mandamus before the judges of the superior courts, and in the Superior and Supreme Courts.” Acts of 1882 — 3, p. 103. This act was under construction in the case of Thompson v. McGhee, 93 Ga. 254, in which this court ruled that “ a bill of exceptions assigning error upon tbe refusal of the court to grant a mandamus absolute must be tendered and certified within twenty days from the date of the decision complained of, whether rendered in term or vacation ”; and that when “ the bill of exceptions is certified more than twenty days after the date of such decision, the writ of error must be dismissed.” Plainly and unmistakably this decision means that no judgment in a mandamus case, though the same be one finally disposing of it on its merits, can be properly brought to this court except by a “fast” bill of exceptions. We were asked to review and overrule the ruling made in the case cited. We de-' cline to do so, but adhere to it as correct. As the writ of error upon the main bill of exceptions must be dismissed, it is not necessary to pass upon the cross-bill of exceptions.
Writ of error in each case dismissed.