Opinion
36522, 36523.
DECIDED MARCH 22, 1957. REHEARING DENIED IN CASE NO. 36523 MARCH 29, 1957. REHEARING DENIED IN CASE NO. 36522 MARCH 30, 1957.
Action for damages; appellate procedure. Before Judge McWhorter. Chatham Superior Court. September 20, 1956.
Harry Silverman, for Altman.
Lewis, Wylly Javetz, John C. Wylly, for Kuhr Brothers, Inc.
Oliver, Davis Maner, Edwin Maner, Jr., for Spahos.
Where, as in the present cases, the judge whose judgment is complained of did not certify the bills of exceptions and the records do not disclose that he was unable to do so for some reason sufficient under Code § 6-906 this court is without jurisdiction of the writs of error.
DECIDED MARCH 22, 1957 — REHEARING DENIED IN CASE No. 36523 MARCH 29, 1957 — REHEARING DENIED IN CASE No. 36522 MARCH 30, 1957.
This is the second appearance of this case before this court. On its first appearance ( Kuhr Bros. v. Spahos, 89 Ga. App. 885, 81 S.E.2d 491), it was held that the trial court did not err in overruling the defendants' general demurrers to the plaintiff's petition or in sustaining the special demurrers to certain allegations of the petition as to mental pain and suffering. After the remittitur reached the trial court the case was tried and a verdict returned against both defendants which was made the judgment of the trial court. The defendants filed separate motions for new trials on the usual general grounds which they later amended so as to add several special grounds. The amended motions for new trials were denied by Judge Dunbar Harrison, Judge of the Superior Court, Eastern Judicial Circuit, on September 20, 1956, and thereafter Judge Edwin A. McWhorter, Judge of the Superior Court, Eastern Judicial Circuit certified the writ of error, and it is to the judgment of the trial court denying their motions for new trial as amended that the defendants except in separate writs of error.
Code (Ann. Supp.) § 6-902 provides in part: "Bills of exception shall be tendered to the judge who presided in the cause within 30 days from the date of the decision complained of." (Italics ours). And Code § 6-906 provides the procedure for having a bill of exceptions certified when the judge who heard the cause is absent from his home or is otherwise unable to certify such bill of exceptions. In Ballard v. Zachry, 54 Ga. App. 101, 102 (3) ( 187 S.E. 139), it was said that the judge who rendered the judgment complained of should certify the bill of exceptions unless the judge is dead. In the present case Judge Dunbar Harrison rendered the judgment complained of, to wit: the judgment denying the plaintiffs in error a new trial, and although Judge McWhorter presided in the trial before the jury, and although he rendered the judgments complained of in the motion for new trial, he did not render the judgments complained of in the bill of exceptions and was without authority to certify the bill of exceptions so as to give jurisdiction of the writ of error to this court. See Jett v. Jones, 87 Ga. App. 531 ( 74 S.E.2d 483), and cases cited. See also Suggs v. Suggs, 196 Ga. 505 ( 26 S.E.2d 886). Since this court is without jurisdiction of the writs of error, they must be dismissed.
Writs of error dismissed in both cases. Felton, C. J., and Quillian, J., concur.