Cooper v. Nisbet , 118 Ga. 872 ( 1903 )

Simmons, C. J.

1. Where it appears that a bill of exceptions signed and certified by the trial judge, defective only in the particular hereafter referred to, has been transmitted to this court by the clerk without any entry of filing upon it, and the clerk certifies that he has no recollection that the bill of exceptions was left at his office within the time prescribed by law of filing; and where counsel for the plaintiff in error apply to this court for a mandamus nisi against the clerk, calling upon him to show cause why he should ~ not be compelled to enter the filing on the bill'of exceptions and to sign the same, tlie petition for mandamus alleging that the hill of exceptions was deposited with the clerk for filing and transmission within the time allowed hy law ; and where the clerk in his answer to the rule nisi denies that the hill of exceptions 'was so deposited in his office in time; and where counsel for the plaintiff in error ask leave to file a traverse to the clerk’s answer and show hy aliunde evidence that the bill of exceptions was filed within time, held: (1) That this court has jurisdiction of the case, and the clerk properly docketed the same. Walker v. Sanford, 78 Ga. 165; Johnson v. Johnson, 80 Ga. 260. (2) That this court has no jurisdiction to hear aliunde evidence and decide disputed issues of fact. Dover v. Harrell, 60 Ga. Ill. (3) That under the provisions of the Civil Code, § 5555, the Supreme Court and the superior court have concurrent jurisdiction to compel hy mandamus the performance of any duty of the officers of the superior court which may he necessary to perfect the hill of exceptions. (4)' After the hill of exceptions has reached the office of the clerk of the Supreme Court, in a case Of the character above referred to, application for mandamus may he made to the Supreme Court, or else application he made in such court to have the hill of exceptions transmitted to the superior court for correction there. (5) If it should appear that the defect can not he remedied hy the proceeding in the Supreme Court, the application for mandamus in the Supreme Court will he dismissed and the Supreme Court will order the bill of exceptions transmitted to the superior court in order that the defect may he remedied hy appropriate proceedings in that court; and time will he given, even until the end of the term, for such proceedings to he had in the superior court as may be necessary to perfect the bill of exceptions.

Argued October 6, — Decided October 31, 1903.

Petition for mandamus.

Hardeman, Davis, Turner & Jones, for plaintiff. Roland Ellis and John R. L. Smith, for defendant.

2. Applying to the present case the rules above laid down, an order will he entered, dismissing the application for mandamus in this court, and directing the clerk to transmit to the superior court the original bill of exceptions in order that such appropriate proceedings may he had in that court as will be necessary to relieve the defects.