Blair v. Blair

209 Ga. 347 (1952)

72 S.E.2d 288

BLAIR v. BLAIR.

17948.

Supreme Court of Georgia.

Submitted July 15, 1952.

Decided September 2, 1952.

J. T. Sisk, for plaintiff in error.

Hudson & LeCraw, contra.

HEAD, Justice.

The bill of exceptions recites that the judgment sustaining the demurrer and dismissing the petition was rendered on May 16, 1952. The certificate of the trial judge recites that the bill of exceptions was tendered on June 6, 1952, and it was signed and certified by the trial judge on that date. Held:

1. It must affirmatively appear from the bill of exceptions, or from the record, that the bill of exceptions was presented within the time prescribed by law. Crawford v. Goodwin, 128 Ga. 134 (57 S. E. 240).

2. The Rules of Practice and Procedure approved February 1, 1946 (Ga. L. 1946, pp. 726-782), provide in § 6 that "Bills of exceptions shall be tendered to the judge who presided in the cause within 20 days from the date of the decision complained of." Code (Ann. Supp), § 6-902. "When a number of days is prescribed for the exercise of any privilege, or the discharge of any duty, only the first or last day shall be counted; and if the last day shall fall on Sunday, another day shall be allowed in the computation." Code, § 102-102 (8).

3. The judgment complained of was rendered on May 16. Not counting May 16, fifteen days remained in the month of May, and the last day for presenting the bill of exceptions within the time provided by law, therefore, was June 5. This court will take cognizance of the fact that June 5 fell on Thursday, and that an extra day was not added under the law for the presentation of the bill of exceptions. Charleston & W. C. Ry. Co. v. Cottonseed Oil Co., 22 Ga. App. 337 (96 S. E. 586).

*348 4. The bill of exceptions was not presented to the trial judge within the time prescribed by law, and this court is without jurisdiction to pass upon the writ of error. Rusk v. Hill, 117 Ga. 722 (45 S. E. 42); Jackson v. Harris, 165 Ga. 873, 879 (142 S. E. 273); Harris v. Plains Mercantile Co., 187 Ga. 337 (200 S. E. 241); Pepper v. Flanagan, 204 Ga. 265 (49 S. E. 2d, 525); Curtis v. Sharp, 206 Ga. 193 (56 S. E. 2d, 118); Pugh v. Moore, 207 Ga. 453 (62 S. E. 2d, 153).

Writ of error dismissed. All the Justices concur, except Atkinson, P.J., and Almand, J., not participating.