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Felker v. Still, administrator, et al.

Supreme Court of Georgia1925-03-11No. No. 4527
160 Ga. 104

Summary

Holding. The writ of error is dismissed because the bill of exceptions was filed more than fifteen days after its certification, as evidenced by the clerk's official entry in the record, which cannot be impeached by subsequent affidavits.

A petitioner sought a writ of error from a lower court decision refusing to grant an interlocutory injunction. The respondents moved to dismiss the writ, challenging whether the bill of exceptions was timely certified and filed. The petitioner argued the bill was certified on August 22, 1924 (within the required twenty days) and claimed supporting affidavits showed it was filed by September 4, 1924 (within the required fifteen days). However, the official clerk's entry on the bill of exceptions clearly showed a filing date of September 8, 1924.

The court held that even assuming the certification date was timely, the filing date established by the clerk's official entry was September 8, 1924—more than fifteen days after certification. The court emphasized that the clerk's official entry regarding the filing date is conclusive and cannot be contradicted by later affidavits or other evidence presented outside the record. Since the bill was not filed within the statutory fifteen-day window, the writ of error was properly dismissed.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether a bill of exceptions was certified within the required twenty-day period
  • Whether a bill of exceptions was filed within the required fifteen-day period
  • Whether a clerk's official entry regarding filing date can be contradicted by later affidavits

Procedural posture

The case arose from a petition for a writ of error challenging a lower court's denial of an interlocutory injunction, with respondents moving to dismiss on grounds of untimely filing.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

Gilbert, J.

Defendants in. error move, upon two grounds, for dismissal of the writ of error, first, because it does not affirmatively appear from the record that the bill of exceptions was signed and certified by the court below within twenty days from the rendition of the decision (a refusal to grant an interlocutory injunction) ; second, because the same was not filed in the office of the clerk of the superior court of Walton County within fifteen days from the date of the certificate of the judge. The bill of exceptions recites that the hearing was had August 2, 1924, and that “now on the 22nd day of August, 1924,” plaintiff in error presents the bill of exceptions for certification. The typewritten date “22nd” appearing in the certificate of the judge upon the bill of exceptions was stricken and the figures “21” written above with pen and ink, so that from the certificate it appears that it was made on August 21st, 1924. The right to move for dismissal upon this ground was reserved by counsel for defendants in error in their acknowledgment of service on the bill of exceptions. The entry of filing on the bill of exceptions is as follows: “Filed in office this 8th day of Sept., 1924. J. E. Malcolm, Clerk.” Subsequently the clerk made an affidavit to the effect that the date of filing appearing on the bill of exceptions was incorrect and that it was filed “not later than Sept. 4th, 1924,” and “within the 15 days required by law.” Still later he made another affidavit that “the entry on the original bill of exceptions showing date Sept. 8th, 1924, ás time of filing in- this office is correct date of such filing.” These affidavits are attached to briefs filed by the respective counsel. Held:

No. 4527.

March 11, 1925.

Rehearing denied April 20, 1925.

Petition for injunction. Before Judge Fortson. Walton superior court. August 3, 1934.

J. H. Felher, for plaintiff.

0. Roberts and R. L. & H. G. Goce, for defendants.

1. If the bill of exceptions be treated as having been certified on August 22nd, as contended for by defendant in error, this would comply with the terms of the Civil Code (1910), § 6153, requiring the bill of exceptions to be certified “within twenty days from the rendition of the decision.” In computing the number of days within which the bill of exceptions must be certified, the first or the last day should be excluded. Rusk v. Hill, 117 Ga. 722 (45 S. E. 42).

2. The bill of exceptions, as shown by the entry of the clerk of the superior court, was filed in the office of said clerk on the eighth day of September, 1924. Morejhan fifteen days elapsed between the date of certification and the date of filing; and this is true whether the date of certification be considered as August 21st, 1924, or August 22nd, 1924. The writ of error must therefore be dismissed. Civil Code (1910), § 6167; Swafford v. Swafford, 125 Ga. 386; Curry v. Curry, 129 Ga. 269 (58 S. E. 697) ; Norris v. Baker County, 135 Ga. 229 (69 S. E. 106); Goodin v. Mills, 137 Ga. 282 (73 S. E. 399); Fuller v. Phoenix Construction Co., 145 Ga. 656 (89 S. E. 718); Williams v. Phillips, 149 Ga. 64 (99 S. E. 40).

(а) “The official entry made by the clerk of a trial court, as to the date on which a bill of exceptions was filed in his office, imports absolute verity, and can not be impeached in the Supreme Court by the production of aliunde proof that the bill of exceptions was, in point of fact, filed at an earlier date. Ga. Fla. & Ala. Ry. Co. v. Lasseter, 122 Ga. 679, and cit.” Swafford v. Swafford, Norris v. Baker County, supra, Cordray v. Savannah Union Station Co., 134 Ga. 865 (2 a) (68 S. E. 697).

(б) Nothing in this ruling conflicts with the provisions of the Civil Code (1910), §§ 6179, 6189.

Writ of error dismissed.

All the Justices concur.