Williams v. Jones

| Ga. | Oct 10, 1882

Jackson, Chief Justice.

A motion was made to dismiss this bill of exceptions on three grounds: first, because all the parties directly interested in the issue made by the bill of exceptions are not made parties thereto and served therewith ; secondly, because the judge’s direction to the clerk in his certificate to the bill of exceptions is to transmit to this court, not an entire transcript of the record, but only a part thereof; and thirdly, because a motion for new trial is still pending in the court below, and the judgment of this court on this writ of error will not dispose of the case finally, no matter on whose behalf it is rendered.

1. It seems that parties interested ifi this issue are not here; therefore, this ground of the motion to dismiss is good. 62 Ga., 135.

2. We do not think that the plaintiff in error, and the judge, without the assent of the defendant in error, ought to dispense with any part of the record, for the reason that a part of it material to the latter might be omitted. A diminution of the record sent might, perhaps, be suggested, so as to relieve the defendant in error from the dilemma. The statute requires that the judge shall order a complete copy of the record to be sent to this court; instead of doing so, he orders only a part of the record transmitted.

The objection appears to us to be substantial and fatal. Code, §4252. No diminution being suggested, and the other grounds fatal, we are not at liberty to have the record completed on our own motion.

3. It is only a judgment finally disposing of the case in the court below, which can be reviewed by this court; therefore, as the case is pending still in that court on a motion for a new trial, it cannot be heard here.

The writ of error must, therefore, be dismissed.