MEADOR, trustee, for use, etc., v. CALLICOTT et al.

Fisi-i, C. J.

(After stating the foregoing facts.)

Without considering the other grounds of the motion to dismiss the writ of error, we think, in-view of the previous rulings of this court which are applicable here, there can be no question that the motion must prevail, on the ground that, after the bill of exceptions had been finally agreed upon as correct, counsel for plaintiff in error failed to retender the same to the judge within a reasonable time. It appears, from the certificate of the judge, that the objections to the bill of exceptions, as originally presented, were discussed before him for three dajrs by counsel for both sides; that on April 15, a bill of exceptions was finally agreed on, and that counsel for plaintiff in error took the same to have it copied as corrected and agreed upon, and did not present the bill as thus copied to the judge until May 23, thus withholding the same for thirty-eight days. In Atkins v. Winter, 121 Ga. 75, it was held that thirty-eight days was an unreasonable length of time to allow counsel for plaintiff in error to remove the judge’s objections and to present to him a corrected bill of exceptions. It was there said: “Since, in the nature of the case, it ought to require less time to correct than in the first instance to prepare an entire bill of exceptions, it is both liberal and reasonable, by analogy, to fix twenty days for the correction and return of the bill of exceptions, the same being a period deemed sufficient by the law for the preparation of bills of exceptions in injunction cases, which are among the most voluminous provided for by statute.” In Allison v. Jowers, 94 Ga. 335, it was said: “The section [Civil Code, §5545] is silent as to the length of time the party to whom it is returned or his attorney will be allowed to remove the judge’s objections and tender a corrected bill of ex-, •ceptions; but he certainly should not be allowed for this purpose (in the absence of some good reason for delay) longer than thirty days.” And in Parkman v. Dent, 109 Ga. 289, it was said: “If, in any event, counsel tendering a bill of exceptions can ever be allowed any greater length of time for correcting the same than that given by statute for presenting it in the first instance, it should appear that the delay was occasioned by imperative necessity.” See also Walker v. Wood, 119 Ga. 624.

In the argument of the motion to dismiss, Atkins v. Winter was brought under review, leave having been granted counsel for plaintiff in error for this purpose. After duly considering the ruling there made, we are thoroughly satisfied of its soundness and approve the same.

Writ of error dismissed.

All the Justices concur, except AtMnson, J., dissenting.

Lumpkin, J.,

concurring. I concur in the judgment of dismissal in this ease, but I can not quite concur in all that is said in the headnotes or opinion. I think the former decisions of this •court settle the proposition that an unreasonable delay in retendering a bill of exceptions to the presiding judge, after it has been returned to counsel for correction, is a ground for dismissal; and that the time allowed by the statute for preparing and tendering a bill of exceptions originally is a proper matter for consideration by this court in determining what is a reasonable time. By analogy, the law would hardly allow more time for merely correcting certain errors or mistakes in a bill of exceptions than for the purpose of preparing the bill of exceptions entirely, — certainly not unless something in the nature of a providential interference or an imperative necessity intervened, so as to make a longer time reasonable for the correction than for the preparation, in Walker v. Wood, 119 Ga. 624, it was said, that “Where a bill Df exceptions is returned to counsel for correction and alteration, it should be retendered to the judge in its corrected form within a reasonable time; and where, in a given ease, counsel delayed re-tendering the bill of exceptions for fifty-five days after the same was returned to him, the writ of error will be dismissed, unless it appears that the delay was occasioned solely by providential •cause or imperative necessity.” If nothing further appears in the case of an ordinary “slow” writ, except that, after the return of the bill of exceptions to counsel for correction and re-tender, he delays making such retender for more than thirty days, by analogy to the statutory time allowed for tendering it after the rendition of the judgment, this would at least prima facie be an unreasonable delay. Candler v. Clarke, 90 Ga. 550 (3). Evidence outside of the record and bill of exceptions can not be heard here on the subject of reasonableness. I can well conceive of a case, however, where the judge might certify to such a state of facts as would make a delay somewhat beyond thirty days reasonable. To illustrate by an extreme case: Suppose a disaster, such, as a destructive earthquake, or a fire which should sweep away a large part of a city and burn all the papers in the office of the lawyer and in the court-house touching the case, or other overmastering providential cause should occur after the return of the bill of exceptions to counsel for correction, and that this should render it impossible for counsel to make the correction and re-tender the bill for signature before thirty days elapsed, I should, be loth to hold that there was an iron-clad, hidebound rule which would declare the delay unreasonable in such a case. In the case of Atkins v. Winter, 121 Ga. 75, it is said that “it is both liberal and reasonable, by analogy, to fix twenty days for the correction and return of the bill of exceptions, the same being a period deemed sufficient by the law for the preparation of bills of exceptions in injunction cases, which are among the most voluminous provided for by statute.” The bill of exceptions in that case was not in an injunction case, nor did the writ of error belong to that class which are known as “fast writs.” The decision was right, the delay having been for thirty-eight days. But I do not think that the analogy selected was sound. Thirty days was the time which counsel would have been allowed to tender the original bill of exceptions, not twenty days. I do not mean that in every case counsel should have the right arbitrarily to delay retendering the bill of exceptions for as long a time as was originally allowed for tendering it, but that, by analogy to the law giving time fot the original tender, an equal time would be a limitation upon the reasonable time allowed for a retender, unless it appears that the delay was occasioned solely by providential cause or imperative necessity; and this should appear, not by extraneous evidence, but- from the record and the bill of exceptions themselves, or the certificate of the presiding judge to the bill of exceptions. In the present case the certificate shows that the bill of exceptions was agreed upon, with the corrections to be made thereto, on April 15th, and was returned to counsel for plaintiff in error for reeopying, presumably because some of the pages contained obliterations or erasures. It was not retendered for signature, for thirty-eight days thereafter. There is nothing to indicate that the delay was occasioned solely by providential cause or imperative necessity. The bill of exceptions contains 171 pages of typewritten matter. If it were copied entirely, and not merely certain pages of it, this would be 171 pages in 38 days, and, allowing five Sundays as non-working days, would make 171 pages recopied in 33 days, or slightly more than five pages a day. In the absence of anything else appearing, I must concur in the judgment holding that the retender was not made in a reasonable time.

I am authorized to state that Mr. Justice Holden concurs with me in the views herein expressed.