Statham v. Saxon

210 Ga. 369 (1954)

80 S.E.2d 182

STATHAM et al. v. SAXON et al.; and vice versa.

18470, 18486.

Supreme Court of Georgia.

Submitted January 12, 1954.

Decided February 8, 1954.

Buford E. Hancock, for plaintiffs in error.

Carlisle & Bootle, contra.

ALMAND, Justice.

The petition in this case was against two defendants, and was twice amended. The trial judge overruled certain objections filed by the defendants to the allowance of the amendments, and also overruled certain grounds of general and special demurrers filed to the petition, but sustained other grounds and dismissed the petition in its entirety as to both defendants. The plaintiffs by main bill of exceptions assign error on the rulings which resulted in the dismissal of their action, and the defendants by cross-bill complain of the overruling of their objections to the amendments, and of the overruling of stated grounds, general and special, of their demurrers to the petition as amended. The only entry on the main bill of exceptions as to service or acknowledgment of service is as follows: "Due and legal service of the above and foregoing bill of exceptions and notice of presentment is hereby acknowledged and the correctness of facts stated in the said bill of exceptions is hereby admitted. This the 4th day of December, 1953. Carlisle & Bootle, Attorneys for defendants in error." This entry is followed by the certificate of the judge, also bearing date of December 4, 1953. Held:

(a) The acknowledgment of service quoted above did not show compliance with Code § 6-911, requiring service of a bill of exceptions on the opposite party or his counsel within 10 days of its certification by the trial judge, but only evidenced conformity with the act of 1946 (Ga. L. 1946, pp. 726, 735; Code, Ann. Supp., § 6-908.1), which requires notice to the opposite party of intention to present the bill of exceptions to the trial judge. This court is therefore without jurisdiction of this bill of exceptions, and the writ of error must be dismissed. Mauldin v. Mauldin, 203 Ga. 123 (45 S. E. 2d 818); Henry v. Gillis, 204 Ga. 397 (50 S. E. 2d 73); Bardin v. Wender Realty Co., 210 Ga. 243 (78 S. E. 2d 785).

(b) Since the judgment complained of in the main bill of exceptions finally disposed of the case in the trial court, the cross-bill is also dismissed. Code § 6-901; Southwestern Railroad Co. v. Mayor &c. of Smithville, 134 Ga. 432 (2) (67 S. E. 936); Futch v. Olmstead, 172 Ga. 233 (2) (157 S. E. 277).

Writs of error dismissed. All the Justices concur.