Adams v. Drinkard , 37 Ga. App. 395 ( 1927 )

Stephens, J.

1. An affidavit made upon the bill of exceptions by counsel for • the plaintiff in error that “Due and legal service was agreed upon by counsel in the within bill of exceptions, then after same was mailed with copy to LaGrange, Ga., attorney for defendant in error returned papers on July 12, 1927,” is, where the bill of exceptions was certified to on June 28, 1927, insufficient to show that service of the bill of exceptions was perfected by delivery of a copy of the bill of exceptions to opposing counsel within ten days from the date of its certification, or that service was acknowledged within that period, as required under-section 6160 of the Civil Code (1910).

2. Where such affidavit constitutes the only evidence of service, or of acknowledgment of service, of the bill of exceptions, and where counsel for the defendant in error does not waive service of the bill of exceptions, or does not consent for the case to be heard in this court, the motion of counsel for the defendant in error to dismiss the bill of exceptions for want of service must be sustained.

Writ of error dismissed.

Jenkins, P. J., and Bell, J., concur.