Cloudis v. Bank of Tennessee , 6 Ga. 481 ( 1849 )

By the Court.

Lumpkin, J.

delivering the opinion.

The pleadings in this case are incurably defective. The law requires that notice of the signing of the bill of exceptions shall be given to the adverse party, or his counsel, within ten days after the same shall have been done, and filed in the Clerk’s office, with the bill of exceptions. This requisition of the Statute has not been complied with.

Again : by the Act of 1845, bills of exceptions, in both civil and criminal cases, were required to be drawn up and submitted to the Judge before whom such cause was tried, within four days after the trial thereof. This provision is repealed by the Act of 1847, and in lieu thereof, the party complaining is allowed thirty days after the close of the term in which said cause was heard, for drawing up and submitting his bill of exceptions for the signature and certification of the Judge.

[1.] Still it must be made affirmatively to appear from the record, that this duty has been performed within the time prescribed, to wit: thirty days after the close of the term in which said cause was heard; and this can be shown, either by the statement of the Judge in his certificate, or by the Clerk’s embodying in the transcript of the record, the day of the adjournment of the Court at which the cause was decided.

It has often been intimated, that too much precision is’exacted in bringing up cases to this Court. Our reply is, that in the distribution of power, we are the law-expounding and not the lawmaking or law-executing department of the Government, and that we are ready, at all times, cheerfully to obey the will of the sovereign authority, in this as in every other matter. Whatever changes experience may suggest in the organic law creating this Court, dispensing with the notice of the signing of the bill of exceptions, and with the filing of these documents in the proper office, can hardly be reckoned among the number. For, however liberal the Legislature may have been upon the subject of amendments, they still require, and I apprehend always will, that process should be annexed to the writ, and the defendant served with a copy, a reasonable time before the trial. To do less would be to insure surprise, trick and artifice. If it was unreasonable, in the opinion of the Roman Governor, to send a prisoner, and not to signify withal the crimes alleged against him, the law judges it to be equally so, to pass upon the dearest civil rights of the citizen, without first giving him notice of his adversary’s complaint. But the policy or propriety of this, as well as every other matter appertaining to the subject, belongs exclusively to another tribunal In the meantime, we do but simply discharge our duty in executing whatever the people, through their representatives, have seen fit to ordain, resting upon the maxim, id quod sibi populus constituet, jus est.