111 Ga. 89 | Ga. | 1900
Rules were issued against four clerks, calling upon them to show cause why they should not be punished for contempt for failing to certify on the transcripts of records which they had transmitted to this court after the expiration 'of the time allowed by law the true causes of such delay. The certificate of the clerk on the transcript in each case was silent as to the cause of the delay. Answers have been filed in response to these rules, in which various reasons are set forth for the failure to transmit the records in time. In each instance the answer in reference to the failure to certify on the transcript the cause of the delay amounts to nothing more or less than either a misapprehension or an ignorance of the. law. As it is manifest, however, from each of the answers that there was no intention on the part of these clerks to violate the law or the rules of- t.his court, no penalty will be inflicted upon them, and the rules will be discharged.
We take advantage of this opportunity to call the attention of the clerks of the courts the decisions of which are reviewable here to the requirements of the law and the rules of this court in reference to the transmission of records, and to give notice that hereafter a strict compliance with the same will be expected and required under penalty.
When a bill of exceptions is filed in the office of the clerk of the trial court, it is his duty to make a complete transcript of' such parts of the record as are specified in the bill of exceptions,
In the answer of one of the clerks it appeared that the delay in transmission was due to the fact that the costs due him for making the transcript had not been paid. In the case of Rutherford v. Jones, 12 Ga. 618, it was held that “The clerk of the superior court is not entitled to demand the costs for making out the transcript of the record, before transmitting the same to the Supreme Court.” Under the law as it existed at the time that decision was rendered, the clerk had no right to demand his costs at all until after the final termination of the case; but the law now provides that when the clerk transmits a record to the Supreme Court, except in cases where an affidavit of inability to pay the costs is filed, he may make out a bill of the costs for such transcript, and when presented to the judge of the court and found by him to be correct, the judge shall award judgment in favor of the clerk for such costs. Civil Code, § 5400. While the clerk has no right to demand payment of the costs as a condition precedent to transmitting the transcript, he has, under the law just referred to, a right to have an execution issued, which would be a remedy available to him to collect his costs in the event the plaintiff in error had failed to file the affidavit of inability to pay costs, and was solvent. In addition to this, if the plaintiff in the case is the plaintiff in error and is a non-resident of the State, the clerk
Rules discharged.