Logan v. Gigley , 11 Ga. 243 ( 1852 )

By the Court.

Warner, J.

delivering the opinion.

[1.] The object of this bill is professedly to correct what is alleged to have been a mistake, by the presiding Judge of the Superior Court, in certifying and signing the bill of exceptions, as stated in the record. By the Act of 1845, it is made the duty of the Judge of the Superior Court, upon the exhibition of a bill of exceptions, to certify and sign the same, if such bill of exceptions he true and consistent with what transpired in the cause tried before him. 1 Kelly, 7. The complaint now made is, that the bill of exceptions, which was certified and signed by the Judge of the Superior Court, is not true and consistent with what transpired in the cause; but that there is a mistake in regard to the facts as certified to by him, by means whereof, on the argument of the cause before the Supreme Court, the judgment of the Court below was affirmed. If there was such a mistake as is alleged, on the part of the presiding Judge, the parties were rather slow in discovering it. The cause was prepared ior argument and was argued before this Court without any complaint as to the alleged mistake. The judgment of this Court, in that case, will be found in 9 Geo. Rep. 115. The counsel of the parties, and especially the counsel for the plaintiff in error, must be presumed to have been familiar with his bill of exceptions, both before and at the time of the argument before this Court; and in our judgment, it would be establishing a very dangerous precedent, to permit parties to attack or impeach a bill of exceptions, after judgment rendered thereon, as the complainant now proposes to do, if there existed no other objections to such a remedy. But the 6th section of the Act of 1845, organizing the Supreme Court of Goorgia, provides the appropriate remedy, when the Judge of the Superior Court shall refuse to certify a bill of exceptions, vvhen properly tendered; that is to say, when a bill of exceptions is tendered to the Judge of the Superior Court, which is true and consistent with what has transpired in the cause before him. The proceeding now before us, seeks to correct the bill of exceptions, the verification of which, the law devolves upon the Judge of the Superior Court, without making that officer a party or giving him an opportunity to be heard in regard to his official conduct. There are, doubtless, many bills of exceptions tendered for the certificate of the presiding Judge, in which” counsel, in their zeal for the cause of their client, may think that officer is mistaken, as to what actually transpired before him on the trial of the cause; but nevertheless, the law makes the Judge the arbiter to decide between them, and it affords no jurisdiction to a Court of Equity, to interfere and set aside a judgment rendered upon such a bill of exceptions ; the more especially, as the party who tendered such bill of exceptions, never made any complaint, or took any step to correct it until after tlie hearing thereon, in the Supreme Court. This case is not entitled to the favorable consideration of a Court of Equity, for another reason. The present complainant, in his plea to the original suit, which is part of the record before us, alleges, that “the bond, which was the foundation of the suit, is illegal and void, because given by the administrator of Charles T. England, on a contract of sale of the land of his intestate, which was made privately and contrary to the Statutes in such cases made and provided, within the knowledge of all tlieparti.es to said bond, and in fraud of the Statutes regulating the sale of intestates’ property.”

The complainant seeks to be relieved from a judgment founded on a contract, which, according to his own showing, is in violation of the Statutes of this State, and in contravention of public policy. 1 Story’s Eq. 295, §298. Howell, administrator, vs. Fountain et al. 3 Kelly, 176. In every view which we have taken of this case, the judgment of the Court below, sustaining the demurrer and dismissing the complainant’s bill, must be affirmed.