McArthur & Griffin v. DeVaughn

67 Ga. 645 | Ga. | 1881

Jackson,. Chief Justice.

There is nowhere in this bill of exceptions any reference made to the brief of the evidence as contained in the record. The error assigned is the refusal to grant a new trial. In such cases, while the evidence need not be incorporated in the bills of exceptions, there must be a reference to it as in the transcript of the record.

Such is the plain provision of the statute, Code, §4253 ; and the adjudications of this court thereon. 61 Ga., 492; 63 Ib., 145; 64 Ga., 366; Atlanta etc. Air-Line Railway Co. vs. Smith, admix., 66 Ga., 205.

A motion was made to reinstate this cause,.on the ground that the bill of exceptions could be amended by the record, under the act of 1881 especially. That act has no application to this cause, because it was dismissed before its passage. Even if applicable, it is doubtful, to say the least, whether reference to the brief of evidence required to be in the bill of exceptions, could be put in it by invoking the record. The record could not supply a reference to itself, because it would not contain that reference, but only the thing referred to.

Certain acts not incorporated in the Code are also invoked in aid-of the motion, and a very able argument is made, based upon the omitted parts of those acts. But to support that argument, it would be necessary to reverse a long line of decisions from 38th Georgia Reports down to this day. Even if the argument were otherwise satisfactory, it is enough to say that “stare decisis ” is an answer to it. It is better that long continued erroneous construction of law should stand than that new ideas should overturn it; and such was the general policy of .this court under its first justices, and this policy or rule of decision has been applied to a large variety of subjects since. We do not mean to say that any of these decisions attacked by this argument of counsel are erroneous, for we are not satisfied that they are; but even if they were, they should stand as a less evil than it would be now to uproot them.

It is sought also to take, this cause without the principle covered by the cases in the 61st -Georgia, the 63d, 64th, and that of the Air Line Railroad Company ; but we think that the principle there ruled covers this case completely.

A statute of the state makes it imperative that when the brief of evidence is not embodied in the bill of excep. tions, but comes up in the abstract of the record for the review of motions for new trial, a reference thereto must be in the bill of exceptions. It is a simple requisition. It can be easily complied with; why should it not be done? Reasonable or unreasonable, it is the law. The general assembly may require what it pleases to appear in that bill, and, unless unconstitutional, it is the duty of this court to enforce its requirement.

Motion to reinstate is denied.