Opinion
34448.
DECIDED FEBRUARY 3, 1953.
Malicious prosecution; from DeKalb Superior Court — Judge Guess. November 4, 1952.
D. B. Phillips, for plaintiff in error.
Miller Head, Jessee Wright, Carl T. Hudgins, contra.
Where general demurrers to a petition in DeKalb Superior Court, which court has two or more active qualified judges, are sustained and the petition is dismissed, a bill of exceptions, assigning error on such judgments, presented to and certified by the judge of said superior court who did not preside in said case and render the judgments complained of, does not afford jurisdiction to this court to pass on the judgments complained of, and will be dismissed.
DECIDED FEBRUARY 3, 1953.
J. C. Jett filed suit in the Superior Court of DeKalb County against C. D. Jones, Mrs. C. D. Jones, and J. D. Chestnut, alleging that the defendants were jointly and severally indebted to him in the sum of $2650. The defendants C. D. Jones and Mrs. C. D. Jones demurred generally and specially to the petition. The defendant J. D. Chestnut also demurred to the petition. On November 4, 1952, these demurrers came on to be heard before Honorable Frank Guess, one of the Judges of the Superior Courts of the Stone Mountain Judicial Circuit, and such general demurrers were sustained and the petition was dismissed as to each defendant, by two separate orders, one on the demurrers of C. D. and Mrs. C. D. Jones, and the other on the demurrers of Chestnut. The plaintiff thereupon excepted to these judgments by bill of exceptions to this court, which bill of exceptions was presented to and certified by Honorable Clarence Vaughn of said Stone Mountain Circuit, and was not presented to and certified by Judge Guess who passed the orders and judgments complained of, and no reason is given why the bill of exceptions was not presented to and certified by Judge Guess. A motion is made in this court by the defendants C. D. and Mrs. C. D. Jones to dismiss the bill of exceptions, on the ground that the judge who heard the demurrers and rendered the orders and judgments excepted to, and thus presided in the case, did not sign and certify the bill of exceptions assigning error in this court on such judgments.
"Bills of exceptions shall be tendered to the judge who presided in the cause within 20 days from the date of the decision complained of." Code, § 6-902 as amended by Ga. L. 1946, pp. 726, 734 (Publisher's Pocket Supp. to Code of 1933, § 6-902). Where the judge who rendered the order is in life, he shall certify to such bill of exceptions, and it must be presented to him for approval and certification. If he is not in life, or is absent or refuses to sign the bill, the provisions of Code § 6-906 govern.
The provisions of the foregoing section are not applicable here. "This court is without jurisdiction to pass upon the correctness of any decision of a judge of the superior court which has not been authenticated or verified by the certificate of the judge whose rulings are complained of." Kennedy v. Ayers, 164 Ga. 277 ( 138 S.E. 155); Ownby v. Barwick, 177 Ga. 878 ( 171 S.E. 567). The bill of exceptions must be presented to the judge who presided in the case and rendered the judgment of which complaint is made, who then shall certify the same, upon compliance by the plaintiff in error with the law relative thereto. This is true even though the judge who heard the cause and passed the judgment has gone out of office and another taken his place. In such instance his successor has no authority to sign the bill of exceptions, but the same must be presented to and certified by the judge who heard the case and passed the judgment. Wright v. State, 5 Ga. App. 813 ( 63 S.E. 936); Luke v. Gilley, 23 Ga. App. 667 ( 99 S.E. 135). This court will take judicial notice of the fact that, at the time this case was tried and at the time the bill of exceptions was presented, Judge Frank Guess was in life and laboring under no disabilities. The record so shows. In a case like the present, where there are two or more judges presiding in a superior-court circuit, and where demurrers to a petition are heard and judgment is rendered by one of the judges, the bill of exceptions assigning error on such judgment must, in order to give this court jurisdiction, be presented to and certified to us by the judge who rendered the judgment sought to be reviewed; and if the bill of exceptions is presented to and certified by one of the other judges of such superior court, who did not preside in said cause, this court is without jurisdiction to pass upon the correctness of such order or judgment, and the bill of exceptions to this court must be dismissed. Code, § 6-902, as amended 1946, supra; Suggs v. Suggs, 196 Ga. 505 ( 26 S.E.2d 886) and cit. Scott v. State, 5 Ga. App. 812 ( 63 S.E. 936).
The motion filed by the plaintiff in error in an effort to validate the bill of exceptions is insufficient as a matter of law to accomplish this purpose.
The motion to dismiss the plaintiff in error's bill of exceptions is sustained.
Writ of error dismissed. Townsend and Carlisle, JJ., concur.