161 Ga. 392 | Ga. | 1925
In our opinion the first question must be answered in the affirmative. Abbreviating the inquiry, the question may be stated as one whether on the review of a case in which two judges at different times and at different stages participate in the adjudication, must verification of the proceedings in the trial court be confined to the judge who presided at the rendition of the final judgment, or may not a different judge, who presided upon the investigation of some preliminary or interlocutory question, verify the history of that portion of the proceedings in the trial court in which the judge who finally presided did not participate and with relation to which he was therefore not prepared to certify? In other words, we hold that the failure of the judge who rendered the final judgment to certify the allegations of a petition for certiorari with respect to antecedent rulings may be supplied by the verification of the judge who made the antecedent rulings in an answer filed by him admitting that the allegations of the petition with respect thereto are true. In Marchman v. Todd, 15 Ga. 25, it was held that “Where a certiorari is granted to review the proceedings of an inferior judicatory, all the magistrates who presided on the trial should answer the certiorari.” At first blush this ruling would seem to be but little in point on the question now before us, for the Marchman case related to a certiorari from one of the inferior courts of this State, which, as is well known, consisted of five justices; and we might infer that an answer from all of the justices who presided at the trial was required for the purpose of informing the reviewing court that the judgment rendered was in fact a judgment of the majority of the court. However, the court did not place its ruling upon that ground. In the seventh division of the opinion, written by Judge Lumpkin, he said: “In eases like this, all the magistrates who presided on the trial below should answer the certiorari. It is not a mere transcript of the record that is sent up; but, like a bill of exceptions in this court, the certiorari and return are intended to supply those facts which do not appear of record. Some of these might be remembered by some of the magistrates, which are not recollected by the rest.” So we see that the real ground upon which the decision embodied in the seventh headnote rests is the propriety or right of each magistrate to verify what he may remember better than some other member or members of the court. And upon the same principle, in the trial of a ease at one stage
A case may be supposed to have been tried in which one judge may have passed upon a plea to the jurisdiction, in which evidence was heard and a judgment as to the jurisdiction vel non had been reached, and for some cause the case may have been continued, and afterwards a final judgment may have been entered before another judge as equally clothed with jurisdiction as the former. The ruling in the Cutts case, supra, we think authorizes us to hold that if the bill of exceptions be properly certified by the judge presiding at the final judgment and termination of the case, and if the exceptions to the ruling of the judge who previously presided at the adjudication of preliminary questions be properly preserved by exceptions pendente lite, a vehicle would be provided by which all of the assignments of error would be within the jurisdiction of this court for review. Judge Lewis, speaking for the court in the Cutis case, supra, states specifically that the only reason why the recitals in the bill of exceptions touching the rulings of Judge Felton are treated “simply as a part of the history of the case” is “for the reason that no proper exception has been taken thereto.” Any one interested in this question may see 11 C. J. 173, §§ 257, 258; People ex rel. Devlin v. Conover, 6 Abb. Pr. (N. Y.) 228; Harris v. Whitney, 6 How. Pr. (N. Y.) 175.
We are of the opinion that the second question should be answered in the negative. An entry, “Georgia, Fulton County: I have this day served the defendant [naming him] personally with a copy of the within action and summons,” must be traversed if
In view of what has been said, the ruling of the Court of Appeals in Tufts v. Threlkeld, 31 Ga. App. 452 (121 S. E. 120), that “A plea to the jurisdiction, on the ground that the defendant was not a resident of the county in which the suit was filed, can not be maintained without a traverse of the entry of service, where it appears therefrom directly or by necessary implication that the suit was filed and served in the county of the defendant’s residence,” can not be reconciled with the holding of the Supreme Court in paragraph' 3 of the syllabus in McKnight v. Wilson,