Jones v. State , 100 Ga. 579 ( 1897 )

Little, Justice.

1. When this case /was called in its order, the State moved to dismiss the bill of exceptions, because the same was not certified by the judge within the time prescribed by law; and presented ;a second certificate from the judge before whom the case was tried, to the effect that the case was tried at the January term, 1897, of Bartow superior •court, on the ''1.9th.'day of .January, which court was in session until the 6th day-of February; that he was absent from home until Saturday the 13th, holding court; and that the ’bill of exceptions was tendered to him on the 12th of February and signed on that day. There was also submitted an .affidavit from J. W. Harris, Jr., in relation to the mailing •and service of the bill of exceptions. It appears from the record in the case, that the bill of exceptions was certified •as true by the judge on the 12th day of February, 1897, ■and that the following recital is made in the body 'of the bill «of exceptions: "And now within twenty days from the «overruling -of Raid motion for new trial, Allen Jones presents this his hill of exceptions and prays that the same may he signed and certified.” Because of this recital therein, we* refused to dismiss the hill of exceptions. There can of' course he no question as to the correctness of the second certificate, nor of the affidavit offered; but this court has-no power to consider a second certificate. The certificate? to the bill of exceptions is the writ of error. Code, §5533. It was ruled in the case of Perry v. Central Railroad, 74 Ga. 411, that after a judge has signed a bill of -exceptionis,. he has exhausted his statutory power with respect thereto,, and he cannot subsequently alter or recertify the same; and’ to the same effect is ’the case of Marshall v. Livingston, 77 Ga. 21; and in the case of Scott v. Central Railroad, 77 Ga. 453, it was held, that if one certificate be made, whether-it certifies all or a part of the bill of exceptions, the bill of’ exceptions is a finished document, -a writ of error, over-which this court has jurisdiction either to hear on the merits- or dismiss for legal cause. There are a number of other adjudications to -the same effect. In the case of Strong v. Atlanta Consolidated St. Ry. Co., 97 Ga. 693, a motion to dismiss was made in this court, and an affidavit submitted tending to prove certain matters connected with the transcript of the record; whereupon the court ruled:: "This affidavit we are constrained to decline to consider,, for the reason that this court has no authority to receivealiunde evidence as to facts transpiring in’ the court below;., not certified to in the record sent to this court.” Thus: it will be seen that the consideration of a second certificate of the judge or of aliunde testimony cannot be-considered here, on a motion to dismiss, but that the certificate of the judge to the bill of exceptions, when in the; regular and prescribed form, is the writ of error in that case, and will be so regarded.

2. Hor could this writ of error be dismissed because it: appeared from the dates in the record that the bill of exceptions was not certified by the presiding judge until twenty-one days after the overruling of the motion for new trial. The act of the General Assembly of Georgia, approved December 24th, 1896 (Acts 1896, p. 45), entitled "An act to regulate the practice in the Supreme Court in certain particulars,” in terms prevents the dismissal of the bill of exceptions. That act expressly provides, that no bill of exceptions pending in the Supreme Court shall be dismissed on the ground that the samé was not certified by the judge in the time now required by law for tendering and signing bills of exceptions. It further provides, that if it appears from the bill of exceptions that the same was tendered to the judge within the time required by law, failure on his part to sign the same within the time prescribed shall be no cause for dismissal of the bill of exceptions; and the only exception to this rule established by this statute, is that such failure to sign and certify within the time prescribed by law was caused by some act of the plaintiff in error, or his counsel. Under the provisions of the act, this court has no power to dismiss the bill of exceptions when the same was tendered to the judge within the time now prescribed by law, without regard to the date on which the judge signed and certified the same, unless it should appear that the failure to sign and certify such bill of exceptions within the time prescribed by law was occasioned by some act of the plaintiff in error or his counsel.

3. An examination of the evidence contained in the record leads us to the conclusion that the verdict in this case is not supported by the evidence. Paschal v. The State, 84 Ga. 326; Grant v. The State, 87 Ga. 265; White v. The State, 93 Ga. 51. As, therefore, the judgment of .the court below must be reversed, we deem it unnecessary and unprofitable to consider and pass upon the alleged errors in the charge of the court.

Let the judgment of the court below be reversed.

All the JustAces concurring.