134 Ga. 432 | Ga. | 1910
(After stating the foregoing facts.) This case began in the court of ordinary with a petition for letters of dis-mission to be issued to a guardian. It terminated in the superior court with a decree that the appointment of the guardian was void
If the paper filed in the court of ordinary in opposition to -the application for the dismissal of the guardian is to be considered as a caveat or legal objection to the discharge, as seems to have been done by the ordinary, it goes far beyond the range of opposition to the grant of the applicant’s petition for dismission. If it is to be treated as also a petition seeking equitable relief, the court of ordinary had no jurisdiction to grant such relief, and the superior court, on appeal from the court of ordinary, had none. Hufbauer v. Jackson, 91 Ga. 298 (2), 300 (18 S. E. 159); Mulherin v. Kennedy, 120 Ga. 1080 (6), 1081 (48 S. E. 437). In any event the judge of the superior court could not, as soon as some evidence was introduced by caveators, terminate the case by a decree, rendered on motion, not disposing directly of the application for dismission of the guardian, by granting or denying it, or dismissing it, but simply adjudging that the appointment of the guardian was void. It is not clear exactly what was the procedure adopted. In the bill of exceptions it is recited that the case came on for trial in the superior court, and that “before striking the jury to try said appeal after the call of said case,” the record of the appointment of the guardian was exhibited to the judge by counsel for the caveators, and that he then granted the decree on motion. The recitals in the judgment do not seem to be in complete accord with this. Some two weeks after this was certified, counsel for defendants in error sought to bring up this evidence, as having been inadvertently omitted, under the act of 1905 (Acts 1905, p. 84), although the terms of that act were neither substantially nor literally followed, and the clerk was ordered to send up as record in the
Section 5528 of the Civil Code provides, that, when a bill of exceptions is presented, “the judge to whom such bill of exceptions is tendered shall, if needful, change the same so as to conform to the truth and make it contain all the evidence, and refer to all of the record, necessary to a clear understanding of the errors complained of.” In section 5536 provision is made by which the .defendant in error either in the main bill or cross-bill of exceptions can have additional portions of the record of the trial court transmitted to this court, and by which this court may itself direct additional parts of the record to be transmitted, if in their opinion it is necessary to have this done in order to fully and fairly adjudicate the questions at issue and the alleged errors. By section 5545 it is prescribed that if the bill of exceptions is not true or does not contain all the necessary facts, the judge may return it to the party tendering it or Ms attorneys for correction, and “if the judge sees proper, he may- order notice to the opposite party of the fact and time of the tendering the exceptions, and may hear evidence as to the truth thereof.” Thus provision is made for ascertaining the correctness of a bill of exceptions before signing it. But after the bill of exceptions has been duly certified to be true, there is no provision of law for the presiding judge to certify that it is not correct in part or in whole. Woolf v. State, 104 Ga. 536 (30 S. E. 796). This is not a cross-bill of exceptions, complaining of other rulings, but is an effort by a certificate to change recitals in a duly certified bill of exceptions. In Dyson v. Southern Ry. Co., 113 Ga. 327 (38 S. E. 749), it was held that “A bill of exceptions duly and regularly certified according to law will not be vitiated by an additional certificate following the one required by statute. In such a case the additional certificate may be ignored and treated as harmless surplusage.” By the act of 1905 the judge was au
'Evidence may be brought to this court in either of two ways: (1) Where a brief of evidence has been filed. In order to file such a brief it must first have been approved by the judge. When in due time so approved and filed, it becomes a part of the record, and, on exception, it can be brought to this court as any other part of the record is brought up. (2) Where no brief of evidence has been approved and filed, and the evidence is not a part of the record of the case, it must be brought up in the bill of exceptions, under the certificate of the judge, or be exhibited thereto, duly identified by the signature of the judge. If the bill of exceptions omits material evidence, the act of 1905 (Acts 1905, p. 84) provides for a supplementary certificate by the judge certifying to the omitted evidence, which evidence and certificate identifying it are required to be sent up by the clerk, and become an amendment to the bill of exceptions. But the law contemplates that evidence must be identified and approved by the judge before it can come to this court, — in the one instance by approving the' brief, in the other by certifying the bill of exceptions, and identifying exhibits, if
Possibty, if from the whole evidence it appears, without conflict, that the appointment of the guardian was null and void and there be no estoppel preventing the caveators from setting up that contention, the judge might dismiss the' petition to discharge the guardian, on the ground that if in law there was no guardian, a
Y(e think this case should be returned for a trial on the petition for discharge and any legitimate objections to its grant, that the judgment should dispose of the ease arising under such application, and that the entering.of the.decree by the judge on motion, upon the introduction of some evidence by the caveators, was erroneous.
Judgment reversed.