Summary
In Ginn v. Ginn, 202 Ga. 292 (42 S.E.2d 923), it is held: "A bill of exceptions must be served upon the defendant in error with a return of such service or acknowledge of service indorsed upon or annexed to the bill of exceptions. Code § 6-911.
Summary of this case from Johnston v. First National BankOpinion
15817.
MAY 16, 1947.
Injunction, etc. Before Judge Edwards. Madison Superior Court. December 14, 1947.
George W. Westmoreland, for plaintiff.
R. Howard Gordon and Rupert A. Brown, for defendant.
1. A bill of exceptions must be served upon the defendant in error with a return of such service or acknowledgment of service indorsed upon or annexed to the bill of exceptions. Code, § 6-911. "If such acknowledgment of service shall be properly entitled in the cause, it need not be physically attached to the bill of exceptions." Code, § 6-912. Where there is no return or acknowledgment of service indorsed upon, annexed to, or accompanying the bill of exceptions, the writ of error must be dismissed. Service can not be shown in the Supreme Court by parol statements of counsel or by producing detached writings purporting to evidence such service. Akerman v. Neel, 70 Ga. 728; Crow v. State, 111 Ga. 645 ( 36 S.E. 858); Hewell v. State, 117 Ga. 752 ( 45 S.E. 76); Smith v. Hirsch, 119 Ga. 514 ( 46 S.E. 637); Brantley v. McArthur, 132 Ga. 459 ( 64 S.E. 326); Izlar v. Central of Georgia Ry. Co., 162 Ga. 558 ( 134 S.E. 315); Davis v. Gillespie, 180 Ga. 850 ( 181 S.E. 167).
2. Upon application of the above-stated rules of law, the motion to dismiss the bill of exceptions must be sustained. The bill of exceptions was filed in this court on March 17, 1947. No service or acknowledgment of service was entered thereon or annexed thereto. On April 5, 1947, the defendant in error filed a written motion to dismiss, upon the ground that the bill of exceptions showed that no service as required by law had been made. Counsel for the plaintiff in error filed with the clerk of this court two affidavits, one on March 19, 1947, and the other on March 26, 1947, made by himself as counsel for the plaintiff in error, in which he averred that on the same day that he mailed the bill of exceptions to the trial court for filing he mailed a copy thereof to counsel for the defendant in error and received through the mails a letter from counsel for the defendant in error acknowledging receipt of the same.
Writ of error dismissed. All the Justices concur.