Brown v. Hutcheson , 39 Ga. App. 99 ( 1929 )

Broyles, C. J.

1. Under tlie ruling of the Supreme Court in this case, handed down on December 11, 1928 (167 Ga. 451, 146 S. E. 27) the rules of the Supreme Court and of this court, providing that where a judge refuses to certify a bill of exceptions, the party tendering the same, if he desires a mandamus nisi to be directed to the judge, must file his application by petition to the reviewing court within twenty days after the refusal of the judge to certify the bill of exceptions, or he will not be heard, are in conflict with the statute, now embodied in section 6159 of the Civil Code of 1910, which provides that the party tendering the bill of exceptions can “apply at the next term” of the reviewing court and then on petition obtain a mandamus nisi, directed to the judge; and that the statute must prevail. Under this ruling, the former judgment of this court in this case (38 Ga. App. 453, 144 S. E. 147), refusing to grant a mandamus nisi upon the ground that the application therefor was not filed until after the expiration of twenty days following the refusal of the judge to certify the bill of exceptions, is hereby vacated.

Decided January 15, 1929. Aldine & Hewitt W. Chambers, for the applicant.

2. The trial judge refused to certify the hill of exceptions on the ground that it embraced matter which ih his opinion was unnecessary and irrelevant, and he returned the bill of exceptions, within ten days, to counsel for the plaintiff in error, with his objections to the same in writing. Counsel did not attempt to meet and remove the objections, but presented to this court a petition for manadmus to require the signing of the bill of exceptions by the judge. Upon a consideration . of the .bill of exceptions tendered to the judge, this court is of the opinion that it contained unnecessary and ’ irrelevant matter, and that the trial judge properly declined to sign it. See, in this connection, Civil Code (1910), § 6158; Little v. Sparks, 112 Ga. 220 (37 S. E. 364) ; Planters &e. Association v. DeLoach, 113 Ga. 802, 807 (39 S. E. 466).

Mandamus nisi denied.

Luke and Bloodworth, JJ., concur.