McPhail v. Calhoun

Nichols, J.

This is an application to this court for a writ of mandamus against Judge Hubert Calhoun, Judge of the Superior Court of the Chattahoochee Circuit, to require him to sign a bill of exceptions. The application discloses that on April 5, 1957, the judge dismissed a motion made by the petitioners to arrest a judgment previously entered by such judge, that thereafter the petitioners tendered a bill of exceptions to Judge Calhoun which was returned to the petitioners for correction together with a list of the objections to such bill of exceptions, and that 8 days thereafter another bill of exceptions was tendered to such judge. The application is to require the certification of the last tendered bill of exceptions which the judge refused to certify. A mandamus nisi was issued and the response of Judge Calhoun states that the objections and inaccuracies pointed out after the first bill of exceptions was tendered were not corrected in the bill of exceptions tendered to him 8 days later. Held:

1. “In Webster v. Griffin, 6 Ga. App. 747 (65 S. E. 708) it is held as follows: ‘Where a mandamus nisi has been issued to the judge of a city court, requiring him to show cause why he should not sign and certify a bill of exceptions, and ini his answer he states that he declined to sign and certify the same because the statement of facts therein was not true, and although he had returned the same to the attorney tendering it, with his objections thereto in writing that these objections had hot been satisfactorily met and removed, the rule will be discharged, as the answer can not be traversed. Civil Code § 5545; Platen v. Adams, 72 Ga. 199.’” Eason v. Thomas, 92 Ga. App. 501 (1) (88 S. E. 2d 758). Accordingly in the present case where the judge’s answer shows that the bill of exceptions was not signed because of untrue statements of fact in the writ of error which were pointed out to the attorneys for the movants in writing, the rule must bo discharged.

Decided September 12, 1957. A. L. Haden, Jr., Jesse I. DuBose, for petitioners.

Rule discharged.

Felton, C. J., Gardner, P. J., Townsend, Car-lisle, and Quillian, JJ., concur.