Izlar v. Central of Georgia Railway Co.

Beck, P. J.

(After stating the foregoing facts.) It appears from an inspection of the bill of exceptions and the endorsements thereon that there was no service of the bill of exceptions and no acknowledgment or waiver of service on the part of the defendant in error. In the affidavit set forth in the statement of facts certain statements are made on oath by one of the counsel for plaintiff in error, which are controverted in a statement embraced in a motion to dismiss, which is also set forth in the statement of facts. We do not, of course, undertake to decide the issue of fact made. We have no jurisdiction to decide it, and besides, it is not necessary; for if the statements contained in the affidavit of counsel for plaintiff in error were not controverted, the bill of exceptions would have to be dismissed. Take it as true that the bill of exceptions was delivered to counsel for defendant in error, and that this counsel himself carried the bill of exceptions to the judge, plaintiff in error could not assume that this was an acknowledgment of service or that it was a waiver of service or amounted to service. And there being no service and no acknowledgment of service or waiver thereof, the bill of exceptions, under the provisions of the statute (Civil Code, § 6160, par. 1), and several decisions made by this court, must be dismissed.

Writ of error dismissed.

All the Justices concur.