BOSTIC v. NESBITT , 209 Ga. 159 ( 1952 )

209 Ga. 159 (1952) 71 S.E.2d 213

BOSTIC et al.
v.
NESBITT, executrix.

17845.

Supreme Court of Georgia.

Argued May 13, 1952. Decided June 10, 1952.

Geo. Starr Peck and Mildred L. Kingloff, for plaintiffs in error.

Phillips, Johnson & Williams and Inslee M. Johnson, contra.

WYATT, Justice.

The bill of exceptions in this case was presented to the trial judge on the 26th day of December, 1951, and was certified by him on the 29th day of February, 1952. No reason appears in the certificate of the judge, nor is any shown by the record for the delay in signing the bill of exceptions. A motion to dismiss was filed and a response thereto made setting up certain facts. An oral request was made by the attorney for the defendant in error at the time of the argument to withdraw the motion to dismiss. This court, however, can not consider these matters or hear evidence thereon. See Dykes v. Brock, 128 Ga. 395 (57 S.E. 700). It is also the duty of this court, under many of its decisions, to determine its jurisdiction, whether or not there is a motion to dismiss. Under the rule laid down in Clay v. Floyd, 208 Ga. 374 (66 S.E. 2d, 916). and Amick v. Poteet, 208 Ga. 674 (68 S.E. 2d, 903), the bill of exceptions must be dismissed. In the two cases above cited, Presiding Justice Atkinson and the author of this opinion dissented. In so far as the author is concerned, he has not changed his mind, but since the majority of the court is of a different opinion, it follows, the bill of exceptions must be dismissed.

Writ of error dismissed. All the Justices concur, except Atkinson, P. J., not participating.