10 Ga. App. 560 | Ga. Ct. App. | 1912
The plaintiff in error presented to the judge of the lower court a bill of exceptions, in which it was stated that in the suit of Thomas E. Scott, trustee in bankruptcy of E. C. Taylor, against Arch Camp, in which a judgment was rendered against the defendant, Arch Camp, at the March term, 1910, of the city court of Covington, a summons of garnishment returnable to said November term of court had been served upon one N. S. Turner; that no answer to the garnishment had been made at the November terln, 1910, or the January term, 1911, and that the plaintiff in fi. fa., after having introduced in evidence his judgment and the affidavit and bond for garnishment, the return of service showing that the garnishee had been duly served, the docket of the court, and all other papers in the case of file, and thereby having shown that the garnishee had filed no answer, asked for a judgment against the garnishee, which was refused, the court, on the contrary, having allowed the garnishee to file an answer. Exceptions pendente lite were filed to the ruling of the court in permitting the garnishee to file his answer, and exception was taken in the bill of
With the certificate in this form the bill of exceptions was filed
1. The first question which arises is upon the petition for the mandamus. It appears, from the petition and the exhibit, that the counsel for the plaintiff in error sent his bill of exceptions by mail to the judge, and that as it was not returned to him until after several dajrs had elapsed, and the time within which the bill of exceptions could be certified was about to expire, he wrote to the judge in regard to the matter. The judge replied the next day, stating that he had certified the bill of exceptions and turned it over to the clerk immediately after he had received it. The same day, counsel for the plaintiff in error addressed a letter to the clerk of the superior court, with a request that the clerk have the bill of exceptions served the next day without fail, and asking the clerk to see to it that the entry of service was made 'and signed by the sheriff. He enclosed copy of the bill of exceptions to be served upon Turner, and requested the clerk to fill in the date of the certificate, in the copy, before having it served. The bill of exceptions, as appears from the entries thereon, was filed March 23, 1911, and service was acknowledged by the attorney for the garnishee (the defendant in error here) on March. 25, 1911.
We think that the act of the clerk in having the bill of exceptions filed and served must be treated as the act of the plaintiff in error himself. The bill of exceptions was not certified by the judge, and an examination of the judge’s statement of facts and certificate would have disclosed that fact. It is very apparent that counsel for the "plaintiff in error believed that the bill of exceptions, as prepared by him, had been certified. He had the right to believe this from the statement of the judge’s letter to that effect, but it transpired that from the judge’s statement he understood one thing, while the judge meant another. Acting upon his belief that the writ of error had been certified, he wrote to Mr. Davis, clerk of the superior court, to have it served by the sheriff. He thus constituted Mr. Davis his agent, and is bound by his acts. “After a
2. On the other hand, if the judge’s note could be considered as a certificate (informal, it is true, but substantially sufficient to give this court jurisdiction), then no proceeding would be of any avail, because the judge could not be required to certify to facts and conditions related to have existed, when as a matter of fact such was not the case. It is plain that the only material assignment of error set forth in the bill of exceptions depends upon whether the summons of garnishment served upon Turner was returnable to the November term, 1910, of the city court of Covington. Under the facts stated by the judge, the averments of the bill of exceptions in this essential particular are fully contradicted.The recitals of fact as to the only assignment of error contained in the bill of exceptions not being certified to be true, it appearing-on. the contrary that the material statements of fact in the bill of exceptions are denied by the trial judge, the attempted -writ of error must be dismissed.
Writ of error dismissed. Pottle, J., not presiding.