West Lumber Company v. Harris , 204 Ga. 343 ( 1948 )

A motion has been made to dismiss the bill of exceptions for want of service. With respect to this question, all that the record shows is an entry immediately following the proposed bill of exceptions, and preceding the judge's certificate, stating: "Service of the foregoing acknowledged. Notice of the time of presentation to apply to the judge for approval is hereby waived. This 30th day of July, 1948. G. S. Peck, attorney for plaintiff." Held:

1. The new rule of practice and procedure enacted in 1946 (Ga. L. 1946, pp. 726, 734; Code, Ann. Supp., § 6-908.1), requiring the judge, before certifying the bill of exceptions, to provide for reasonable notice to the opposite party or his counsel and thus afford an opportunity to be heard on the question as to whether or not the proposed bill of exceptions is correct and complete, was not intended to and does not alter or change the rule requiring service of the bill of exceptions after it is signed and certified. Mauldin v. Mauldin, 203 Ga. 123 (45 S.E.2d 818). And a waiver of the notice which must now be given, under the new rule, of a proposed bill of exceptions before approval — as we construe the entry signed by opposing counsel in the present case only to be — does not dispense with the necessity of serving the bill of exceptions after approval by the trial judge.

2. Unless there is an acknowledgment or waiver of service entered upon or annexed to the bill of exceptions, the plaintiff in error must within ten days after it is signed and certified serve a copy thereof on the opposite party or his counsel, and endorse upon or annex thereto a return of such service; and they alone are parties defendant in this court who are thus served. Code, § 6-911.

3. No service of the bill of exceptions having been made in the present case, and no waiver thereof appearing in the record, this court is without jurisdiction of the writ of error and the motion to dismiss it must be sustained. Seliger v. Coker, 105 Ga. 512 (31 S.E. 185); Conner v. Flanders, 129 Ga. 734 (59 S.E. 771); Johnson v. McKelvin, 150 Ga. 812 (105 S.E. 600); Ham v. Preston, 152 Ga. 244 (109 S.E. 505); Davis v. Gillespie, 180 Ga. 850 (181 S.E. 167); Conaway v. Scott, 194 Ga. 841 (22 S.E.2d 806); Mauldin v. Mauldin, supra.

Writ of error dismissed. All the Justices concur, except Bell, J., absent on account of illness.

No. 16391. OCTOBER 11, 1948.