Lane v. Robinson

40 Ga. 467 | Ga. | 1869

Warner, J.

When the case was called in its order on the docket of this Court, a motion was made to dismiss it, on the ground that the bill of exceptions was not certified and signed by the presiding Judge, within thirty days from the date of the decision made at Chambers. The motion was sustained, the writ of error was dismissed, and the judgment of the Court below was affirmed. The next morning, before the minutes of the Court had been read and approved, the counsel for plaintiff in error made a motion for mandamus nisi to be directed to the presiding Judge of the Superior Court, requiring him to show cause why he should not state in his certificate the reason why he did not certify the bill of exceptions, within the thirty days, as required by law, alleging in the petition for mandamus that the same had been tendered.to him within thirty days from the date of the decision made at Chambers. The facts alleged in the petition for mandamus were verified by the oath of one of the movant’s counsel. At the same time a motion was made to vacate the judgment, dismissing the writ of error, and to reinstate the case on the docket.

From the facts stated in the petition for mandamus, it manifestly appears that the reason why the bill of exceptions was not certified and signed within the thirty days, was without the fault of the party tendering the same, he having tendered it within time to the presiding Judge. When the Code was adopted, the terms of the Supreme Court were held at different times and places iirthe State; whereas, there are now but two terms of the Court, held annually at one place. The 4198th section of the Code provides, that if from any cause the bill of exceptions is not certified by the Judge, without fault of the party tendering, such party or his attorney, shall apply at the next term of the Supreme Court, wherever it may be, and, on petition, obtain from said Court a mandamus nisi directed to such Judge. There is no time stated in the Code, nor in the present rules of this Court, at which, during the next term thereof, the application must be made for mandamus, and this being the next term of the Court, since the bill of exceptions was tendered, the plaintiff in error claims that he is now in time to make his application. In order to prevent the plaintiff in error from losing his right to be heard in this Court, by reason of the failure of the presiding Judge to perform his duty, as required by law, when he has not been guilty of any fault or negligence himself, we will grant the mandamus nisi, and reinstate the case upon the docket of this Court. All bills of exceptions are to be signed and certified by the presiding Judge, within thirty days after the adjournment of the Court, or from the date of the decision made at Chambers, and if not so signed and certified, the cause of the delay must be stated in his-certificate, annexed to the original bill of exceptions.

Let the mandamus nisi prayed for issue, and the case be reinstated on the docket of this Court.