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Turner os. Collins.

signing of the bill of exceptions is returned to that office, copies of which, made out by the counsel of the plaintiff in error, shall be served on the defendant in error, by the Sheriff of the Coun.. ty, or by counsel for plaintiff in error, within ten days from the signing and certifying of the bill of exceptions; and an entry of the same shall be made on the original writ, by the counsel or Sheriff who makes it, officially; and it is then made the duty of the Clerk of the Court, where the trial is bad, to send up to this Court, together with the bill of exceptions and transcript of the record, the writ of error and citation, duly by him certified to be the originals filed in his office. Supreme Court Manual, 31, 32.'

[2.] The writ of error in this case has no entry of service made thereon, either by the Sheriff of Henry County, where the proceeding below took place, or by the counsel of the plaintiff in error; and Mr. Moore, as the attorney of Andrew Turner, proposes pow, to supply the omission, and make the entry in this Court, nunc pro tunc. It is resisted by the opposite party, and a counter affidavit submitted, to the effect that the defendant vever was, in fact, served with a copy,

We cannot allow this entry of service to be now made. To permit it, would not only repeal the Rule, but be productive of much mischief. The entry of service, if made as directed, iş conclusive-it cannot be controverted here, as the return of ministerial officers can be in the other Courts of this State; and this is giving advantage enough to plaintiffs in error. The only evidence which we receive in this Court, is that which is transmitted through the Clerk of the Superior Court, and it all must be in writing, and, if defective, it cannot be rectified by amendment or otherwise. · The entry of service is presumed to be correct, from having been made at the time the act was done. It would greatly weaken its authority, to suffer it to be made at a future day, inasmuch as the party must then depend upon the strength and tenacity of his memory for its correctness,

We think it impolitic to tempt counsel thus to shield themselves from the consequences of their own negleet, when, by the pleadings here, it is brought to their notice-when, in order to obtain a continuance, the party makes affidavit of the facts which he expects to prove by the absent witness--the opposite party is not allowed, by the 36th Rule ot the Superior Courts, to force a trial, by an admission of the facts stated in the affidavit. 2 Kelly,

a

Turner vs. Collins.

473. Why is this prohibited? The reason is to be found in public policy-it is to take away from the applicant, the motive to make his showing broader than the truth would warrant, and thus either force a continuance, or procure the admission of more than he could actually prove; in other words, both of these rules are based upon

the same considerations which led to the enactment of 29 Charles II.

If this defect could be now cured, the other party might well complain, that he was taken by surprise. He examines the papers, as they appear of file in the Clerk's office of the Superior Court, previous to their transmission-he finds that the writ of error is not served; at any rate, that no entry is made thereof, as é required, and he comes here to have the case dismissed, on that account; but his objection is overruled, and he is forced, without preparation, to argue the cause upon its merits; for, under the Constitution, this surprise is no sufficient ground for a contin

uance.

(3.] To allow this practice, would operate unequally upon the rights of parties. Here, the service is alleged to have been made by the counsel; but it is more usually done by the Sheriff, residing often in a distant and remote County, and who could not reach the Court in time to amend his return.

It would give rise to exciting and discourteous altercations, on account of the conflict of statement between counsel. Here, each party has tendered his affidavit—the one testifying to personal service-the other, just as distinctly denying it. We cannot and will not try this issue of veracity, or memory. We must and do believe, that both are equally credible, and entirely conscientious; and we assume, for the purposes of this decision, that a copy of the writ of error was served, but counsel failing to make entry thereof, as directed by the rule, we refuse the motion to come into this Court and do it now. Better that an individual should suffer, than allow a salutary rule to be broken down, merely for the purpose of relieving a party from the consequences of his own neglect.

In Perry & Peck vs. Higgs, (6 Ga. Rep. 43,) this Court held, that if the bill of exceptions bore date before the trial of the cause, and there is nothing in the record by which it can be amended, the writ of error will be dismissed. So, if the party fails to give notice, as required by the 4th section of the Act organizing this

Turner os. Collins.

Court, and to file the same, with the return of service thereon, within the time required, (2 Kelly, 262. 5 Ga. Rep. 582)—so, if notice of the signing of the bill of exceptions, and copies of the writ of error and citation, are not served within the time required by law and the 21st Rule of this Court, (4 Ga. Rep. 525)—so, if the Clerk fails to make out and transmit a copy of the record, within ten days from the filing of the original notice, with entry of service thereon; and the Clerk's certificate must show this fact, and the omission cannot be supplied by aliunde testimony. Leak vs. McDowell, 6 Ga. Rep. 264. Duke, administrator, vs. Trippe, 1 16. 317. And the uniform determination of this Court has been, not to look out of the papers to inquire into any fact; but whatever fact there appears, will be taken to be true; and if it does not appear in writing, it does not exist. 2 Kelly, 338. Ib. 439.

By reference to the adjudications of the Courts of our sister States, upon the subject of the issuing of the writ of error, service thereof, return, &c. they are equally rigid in exacting a stern compliance with the rules and regulations by which they are governed. It is true, that in some of them, they will not suffer a party to be turned out of Court, provided they are satisfied that he has done all that duty required. But after a most careful examination, I am prepared to affirm, that there is no State in the Union, where the same degree of vigilance is imposed on litigants, and where less discretion is allowed to the Court, to excuse them from failing to exercise it. United States vs. Hodge, 3 How. U. S. R. 534. Rutherford vs. State Bank, 3 Pike, 493, 558. Coleman vs. Tidwell, 5 How. Miss. R. 12. Natchez Insurance Company vs. Stanton, 4 18. 7. Newell rs. Briggs, 3 Ib. 45. Rocbuck vs. Duprcy, 2 Ala, 352.

I would only remark, in conclusion, that families, schools, corporations, courts, countries, the world, the universe, are all governed by rules, and either wanting these, ends in confusion and chaos.

Let the writ of error be dismissed, for want of entry of service made at the proper time.

Hogg et al. vs. Mobley and another.

No. 44.-JAMĖS V. Hogg et. al. plaintiffs in error, vs. ELDRIDGE

MOBLEY and another, defendants.

[1.] Where an appeal is taken from the Court of Ordinary to the Superior

Court, under thre Act of 1805, which requires the appellants to give security to the Clerk for'all costs which may acorue, by reason of such appeal: Held, that an acknowledgment, taken by the Clerk, that the appellants, and their security, were jointly and severally bound to the appellees for the payment of-all costs that should accrue upon the appeal, in terms of the Statute, was a good and valid appeal, according to the trie intent and meaning of the Act of 1805; and that the appellants, and their security, would be bound in law for the payment of all costs which might accrue, by reason of said appeal.

Caveat of a probate, in Coweta County, Decision by Judge Hill, at September Term, 1849.

In this case, E. Mobley and W. Mobley were the propounders of the last will of Jethro Mobley, and James V. Hogg and others were caveators before the Court of Ordinary of Coweta County. The decision of the Ordinary was against the caveators, and they appealed to the Superior Court of said County. On the trial of this appeal, among other points taken, (not excepted to the propounders objected that the appeal bond was payable to the propounders, instead of to the Clerk. On a motion to dismiss the appeal, the Court sustained this exception, and ruled the bond void.

Caveators then moved to amend the bond, by inserting the name of the Clerk in lieu of the propounders, or to be permitted to file a new bond, nunc pro tunc, which the Court overruled. To all of which said rulings and decisions, the caveators excepted, and thus the case comes up..

ColquitT and Cole, for plaintiffs in error.

W. DOUGHERTY and Srokes, for defendants

.

, By the Court.-WARNER, J. delivering the opinion.

[1.] By the Act of 1805, appeals are allowed from the Courts of Ordinary to the Superior Court, on the dissatisfied party pay. ing all costs which may have accrued, and givipg security to the

Hogg et al. vs. Mobley and another.

Clerk of said Court of Ordinary for such further costs as may accrue, by reason of such appeal. This Act does not require any bond shall be given to the Clerk-it prescribes no form for entering the appeal, but only requires security to be given to the Clerk, for such further costs as "may accrue by reason of the appeal. Prince, 238.

From the record in this case, it appears that the caveators were dissatisfied with the decision of the Court of Ordinary, and applied to the Clerk thereof to enter an appeal, and tendered William C. Freeman as their security. The Clerk accepted the secu

rity tendered to him, and required the caveators and their securi-ty, to acknowledge themselves bound to the propounders of the

will, for the payment of all costs that should accrue on the appeal, in terms of the Statute. All the Act of 1805 requires of the Clerk is, to take the security offered by the appellant-it is silent as to any particular form in which such security shall be bound; but we think the form adopted by the Clerk in this case, is a very common and appropriate one, to bind the security. If the appellees prevail, they will be entitled to enter up judgment for their costs against the appellants and their security, according to the second section of the Act of 1826. Prince, 461. By the Act of 1823, appeals from the Court of Ordinary are to be tried in the same way, and under the same regulations, as other appeals. Prince, 455. The counsel for the defendant in error seems to suppose the Statute requires a bond, to be made payable to the Clerk, and cites the case of Anthony vs. Brooks, 5 Georgia Rep. 578.

The Act of 1805, as we have seen, requires no bond, but that security shall be given to the Clerk. In Anthony vs. Brooks, this Court held, that a claim bond should be made payable to the Sheriff, for the reason that the Act of 1821 declares that the claimant shall give bond to the Sherif, conditioned to pay the plaintiff all damages, &c.; besides, the Sheriff is to take the bond in a sum equal to double the amount of the property levied on; at a reasonable valuation, to be judged of by the levying officer, Prince, 448. In our judgment, the appellants in this case gave security to the Clerk, within the true intent and meaning of the Act of 1805, and that they and their security are bound' in law for all costs which may accrue, by reason of such appeal.

Let the judgment of the Court below be reversed.

VOL, vi 33

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