Curey v. Hitch , 57 Ga. 197 ( 1876 )

Where the judgment alleged to be erroneous is in favor of the solicitor general, the clerk and the sheriff, specifying the amount to be recovered by each, and the bill of exceptions only shows service of a tme copy personally upon t^e defendant, the writ of error will be dismissed. (R.)

Parties. Service. Practice in the Supreme Court. July Term, 1876.

At the March term, 1872, of the superior court of Coffee county, at the instance of Curey, as prosecutor, the grand jury returned two true bills, one against six defendants for robbery, and one against two defendants for false imprisonment. At the following October term the cases were settled by the pi’oseeutor and the defendants, with the consent of the presiding judge, upon condition that the prosecutor pay all legal costs. In pursuance of this agreement the true bills were quashed. Cux-ey paid to the solicitor general $133 00 as the legal costs. Subsequently, at the April term, 1876, he filed an' affidavit stating that he had been chai’ged by the solicitor general too much costs. The solicitor then moved to take the following order, stating the cases : “Whereas, the above stated cases were settled’ by order of court, at the October term, 1874, and thei’e was a failure to enter judgment against the prosecutor for costs, it is ordered by the coux’t that Simon W. Hitch, solicitor general, do recover from Daniel Curey, prosecutor, the sum of $160 00, and that S. P. Gas-kin, clerk, do recover the sum of $40 00, costs, and that the sheriff do recover the sum of $18 00, costs. And it is further ordered that this judgment be entered upon the minutes of this court mono pro tuna.”

To this order Curey filed numerous objections, attacking the amount awarded to each of the aforesaid officers of court.

The objections wex’e overruled, and Curey excepted.

The. only evidence of service of the bill of exceptions was the following entry:

“ I have this day served a true copy of the within original bill of exceptions personally upon the defendant. This April 13th, 1876. (Signed) D. H. Johnson, Sheriff.”

Counsel for defendants moved to dismiss the writ of error because all the defendants were not served with the bill of exceptions; and further, because it .was impossible*for the court to be informed, from the entry, which one was served.

The motion was sustained and the case dismissed.