Wilkes v. Aderhold , 202 Ga. 641 ( 1947 )

Where a bill of exceptions is returned to counsel for correction and alteration, it should be retendered to the judge in its corrected form within a reasonable time; and where no sufficient reason is shown, a delay of nearly three months in retendering a corrected bill of exceptions, is unreasonable, and the writ of error will be dismissed.

No. 15905. SEPTEMBER 6, 1947. The judgment complained of was rendered on January 18, 1947. A motion has been made to dismiss the writ of error upon the ground that a proper bill of exceptions was not presented within the time prescribed by law. In the certificate attached to the bill of exceptions the trial judge said: "As to the date of tender and certification of this bill of exceptions" On February 6, 1947, I received by mail a bill of exceptions to the judgment complained of, but same was not true and I could not certify same. I promptly returned this bill to counsel for plaintiff in error, and in a letter called his specific and definite attention to facts and testimony which would have to be incorporated before I could certify same. In a few days I received another bill of exceptions which was not true. Having definitely put counsel on notice that I would not certify a bill which did not contain the facts and testimony specifically called to his attention, I did not feel that I was under obligation to return that second bill proffered with a second notice as to the required contents of the bill. I did not certify the second bill and the matter passed from my mind. On May 3, 1947, I received this bill of exceptions which substantially sets forth the facts and testimony which failed to appear in the second bill, after specific notice that same was required. These are the facts. Whether or not the bill of exceptions was tendered within the time prescribed is a question for the Honorable Supreme Court of Georgia. This May 5, 1947." By an act of the General Assembly (Ga. L. 1946, pp. 734-735), section 6-902 of the Code was repealed, and in lieu thereof the following provision for the presentation of bills of exceptions was enacted: "Bills of exceptions shall be tendered to the judge who presided in the cause within 20 days from the date of the decision complained of. This provision as to time shall apply to bills of exceptions in all classes of cases and shall so apply irrespective of whether or not the term at which the decision was rendered had adjourned, and irrespective of whether the decision complained of was rendered in vacation or at chambers or during a term of court, except that nothing herein contained shall change any provision of section 27-1201 of the Code of 1933, providing the time within which direct bills of exceptions must be taken to denials of motions for change of venue." The Code, § 6-909, provides: "If the judge shall determine that the bill of exceptions is not true, or does not contain all the necessary facts, he shall return the same, within 10 days, to the party or his attorney, with his objections to the same in writing. If those objections shall be met and removed, the judge may then certify, specifying in his certificate the cause of the delay." This section is silent as to the length of time the party to whom it is returned, or his attorney, will be allowed to comply with the judge's objection and tender a correct bill of exceptions. In a number of decisions by this court it has been held that the plaintiff in error, in such circumstances, has a reasonable time in which to do so. See Joseph v. East Tenn. Va. c. Ry. Co.,92 Ga. 332 (18 S.E. 294); Allison v. Jowers, 94 Ga. 336 (21 S.E. 570); Walker v. Wood, 119 Ga. 625 (46 S.E. 869);Atkins v. Winter, 121 Ga. 75 (48 S.E. 717); Turner v.Turner, 191 Ga. 123, 125 (12 S.E.2d 633); Hadden v.Fuqua, 194 Ga. 621 (22 S.E.2d 377). In Atkins v.Winter, supra, it was held that a delay of 38 days in returning a corrected bill of exceptions was, as a matter of law, unreasonable. The present plaintiff in error did not tender a correct bill of exceptions until 106 days after the date of the judgment complained of, and nearly three months after the bill of exceptions was returned for correction. No sufficient reason being shown for such delay, under the authorities cited, the motion of counsel for the defendant in error to dismiss the bill of exceptions is accordingly sustained.

Writ of error dismissed. All the Justices concur, exceptWyatt, J., who took no part in the consideration or decision ofthis case.