9 Ga. App. 294 | Ga. Ct. App. | 1911
The office of a bill of exceptions is to certify to the truth of the recitals contained in the bill of exceptions, and if the certificate fails to do this, or if the judge certifies that the bill of exceptions is in whole or in part untrue, a dismissal of the writ of error will necessarily result. Clary v. Nash, 6 Ga. App. 549 (65 S. E. 301); Scott v. Whipple, 116 Ga. 214 (42 S. E. 519). Prior to the act of 1893 it might be that this statement of the trial judge, incorporated as a part of his certificate to the bill of exceptions, would result in a dismissal of the writ of error; but since the passage of that act the Supreme Court is not authorized to dismiss a writ of error simply because of the lack of literal conformity to the form
But learned counsel insists that the additional certificate made by the trial judge should be disregarded entirely, because unauthorized, and because it contradicts the verification of the grounds of the motion for a new trial. In McCullough v. National Bank, 111 Ga. 134 (36 S. E. 465), it is held that a note of the judge, preceding his certificate to the bill of exceptions, and expressly certified as a part of the bill of exceptions, must be considered as such. Here the statement written by the judge, and inserted after the usual form and before his signature, does not precede the certificate; but it does precede the signature, and it is clear that the certificate is not complete without the signature of the judge — in. fact, that it amounts to no certificate at all until the signature of the judge is attached. But, as before remarked, this note of the judge does not contradict in any particular any statement made in the bill of exceptions. It merely adds the reason why the judge did not comply with the request of counsel to charge the jury in writing. It would have been better practice if the trial judge had made this statement when he approved the grounds of the motion for a new trial. The conversation which occurred between the judge and the attorney, which the judge incorporates as a part of the certificate to the bill of exceptions, was not a part of the record of the case, and therefore could not be certified and brought up to this
We fail to see how this statement, added to the usual certificate, affects in any manner the integrity of the bill of exceptions. It does not contradict any recital therein, or render obscure any recital, and we can see no reason why it should not be considered as a part of the bill of exceptions. When so considered, it presents a sufficient answer to this assignment of error; but it does not contradict the verification of - the ground of the motion for a new trial. It merely supplements and explains.
The evidence fully justified the verdict, and no error of law' appears. Judgment affirmed.