Colquitt, governor, vs. Solomon

Supreme Court of Georgia1878-08

61 Ga. 492

Summary · law.co

Holding. The court held that exhibits following a judge's certificate must be identified by the judge's signature upon the exhibit itself to be properly included in the appellate record, and that documents on file in the clerk's office in a scire facias case do not automatically become part of the appellate record without separate identification showing they are the identical papers offered in evidence. The writ of error was dismissed.

This case addresses the procedural requirements for presenting evidence to the appellate court through bills of exceptions and exhibits. The court established that materials appearing before a judge's certificate are considered part of the bill of exceptions and need only the certificate for verification, while materials following the certificate must be separately identified by the judge's signature on the exhibit itself. The opinion clarifies that in a scire facias action (a proceeding to enforce a forfeited recognizance), the underlying documents filed in the clerk's office—such as the recognizance, indictment, and warrant—do not automatically become part of the appellate record merely by virtue of being on file; they require proper authentication to establish they are the identical documents presented at trial.

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

Key issues

Authentication and identification requirements for exhibits in bills of exceptions
Proper procedure for incorporating evidence into the appellate record
Whether documents on file in clerk's office automatically become part of the record in scire facias proceedings
Standards for reviewing judgments when evidence authentication is deficient

Procedural posture

A writ of error was filed challenging a judgment rendered in a scire facias action brought by the state to recover on a forfeited recognizance.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Bleckley, Justice.

Whatever precedes the judge’s certificate, though called an exhibit, is a part of the bill of exceptions, and may be verified by the certificate alone. 48 Ga., 566; 58 Ga., 346. What follows the certificate as an exhibit, is an exhibit proper, and must be identified, as indicated by the tenth rule of this court (38 Ga., 689), by the judge’s signature upon the same. Such identification, strictly speaking, was requisite, even before the rule called for it in express terms. 13 Ga., 495. The case in 10 Ga., 1, was decided on its own special facts, and the court intimated an opinion against its being taken as a precedent on the fourth point ruled. See the caution on page 5.

A scire facias brought by the state to recover judgment on a recognizance as forfeited, does not so draw to it the recognizance, the indictment, and the preliminary affidavit and warrant, of file in the clerk’s. office, as to make them a part of the record in the scire facias case, and thereby fit them to come to this court in the transcript without other identification than what results from the usual certificate of the clerk annexed to the transcript. At least, this is so on the question of whether they were the identical papers offered in evidence on the trial of. scvre facias.

To review a judgment when the assignment of error is, that “the court erred in rendering judgment in favor of said defendant, under the evidence in said case,” it is necessary to have the evidence here; and to be here, it must come duly authenticated.

The following statement as to the modes of bringing evidence to this court, except the rigor of strict law be softened by consent of parties or their counsel, and except where documents, by reason of being copied in or annexed to the pleadings, must necessarily come up as a part of the record, is exhaustive, and may be deemed correct in every particular.

(a) If no motion for a new trial. Incorporate the evidence in the bill of exceptions somewhere. It may be the first thing, or the last thing before the judge’s certificate, or it may come in at any intermediate place. Or, let it follow the judge’s certificate as an exhibit, referring to it as such in the bill of exceptions, and having the judge to place his signature to or upon the exhibit to identify it as the same to which the bill of exceptions refers.

(5) If a motion for a new trial. Pursue either of the foregoing methods, just as if there had been no motion ; or simply refer, in the bill of exceptions, to the brief of the evidence approved and filed on the motion for a new trial, leaving the clerk to send up a copy of the brief in the transcript. To make the brief a- part of the record, so as to fit it for appearing in the transcript, it .must be expressly approved by the judge, and filed with the clerk, or in his office. The evidence of approval is either an entry on the brief to that effect, signed by the judge, or an express affirmation in the bill of exceptions that it was approved. The evidence of filing is either the usual eutryof the clerk, regularly signed, orelse something in the bill of exceptions or in the record, or in both compared, from which filing can be inferred with certainty.

Writ of error dismissed.