Opinion
34457.
DECIDED JANUARY 27, 1953. REHEARING DENIED MARCH 17, 1953.
Appellate procedure; from Fulton Civil Court — Judge Henson. November 19, 1952.
Frank A. Bowers, Frank Grizzard, Noah J. Stone, for plaintiff in error.
McFarland Cooper, contra.
The unverified statement or certificate of counsel for the plaintiff in error that he had that day served the defendant in error with a copy of the bill of exceptions by delivering the same to a named member of the firm of attorneys of record for the defendant in error, nothing further appearing, is insufficient compliance with the provisions of Code § 6-911, and the writ of error must be dismissed.
DECIDED JANUARY 27, 1953 — REHEARING DENIED MARCH 17, 1953.
The Decatur Lincoln Mercury Company Inc., as transferee of Junior L. Rigsby, brought suit in the Civil Court of Fulton County against C. M. Hall Motors Inc., seeking to recover $610. The defendant demurred to the petition and also later moved to dismiss it. The trial judge overruled said demurrer and also the motion to dismiss, and to these judgments C. M. Hall Motors Inc. excepted. Attached to the bill of exceptions appears this statement or certificate of counsel for the plaintiff in error: "Georgia, Fulton County. I certify that I am counsel of record for the plaintiff in error and that I have this day served the defendant in error with a copy of the within and foregoing bill of exceptions by delivering the same to Martin McFarland in person at 11:20 a. m. this date, he, Martin McFarland, being a member of the firm of McFarland Cooper, and being the attorney who appeared in open court and tried the action to which exception is taken. This the 28th day of November, 1952. [Signed] Noah J. Stone, Attorney for plaintiff in error."
No motion is made to dismiss the writ of error. However, in matters affecting the jurisdiction of this court to entertain a writ of error, we must act ex mero motu. Service of the bill of exceptions on the defendant in error or its counsel, or proper acknowledgment thereof by such party or its counsel or the due and legal waiver thereof, as provided by Code § 6-911, is absolutely essential to confer jurisdiction on this court to entertain the writ of error. Southside Atlanta Bank v. Anderson, 200 Ga. 322 (3) ( 37 S.E.2d 404), and cit.; Irwin v. LeCraw, 206 Ga. 702 ( 58 S.E.2d 383) and cit. An unverified certificate by counsel for the plaintiff in error that he has on the date named, as counsel for the plaintiff in error, served the counsel of record for the defendant in error with a copy of the bill of exceptions by delivering the same in person to a named member of the firm of attorneys representing the defendant in error in the cause — no other service, waiver thereof, or acknowledgment appearing — does not confer jurisdiction on this court, and the writ of error, even in the absence of a motion therefor, must be dismissed. Anderson v. Humphries, 140 Ga. 368 ( 78 S.E. 1079); Smith v. McKnight Brothers, 28 Ga. App. 732 ( 113 S.E. 48); Bray v. Langley, 169 Ga. 733 ( 151 S.E. 376); Ivey v. McWilliams, 178 Ga. 760 ( 174 S.E. 354); Sistrunk v. Lipscomb-Weyman-Connors Co., 179 Ga. 48 (2) ( 175 S.E. 12). Service of such bill of exceptions can not be shown in the Court of Appeals after the writ of error has been filed in said court. Johnson v. McKelvin, 150 Ga. 812 ( 105 S.E. 600).
The defendant in error cannot confer jurisdiction upon this court by appearing and filing briefs in the appellate court and making no motion to dismiss the writ of error. See Mauldin v. Mauldin, 203 Ga. 123 ( 45 S.E.2d 818); Harper v. A. W. P. R. Co., 204 Ga. 311 ( 49 S.E.2d 513); West Lumber Co. v. Harris, 204 Ga. 343 ( 50 S.E.2d 15). The act of 1946 (Ga. L. 1946, p. 726 et seq.) made no change in the provisions of Code § 6-911. Harper v. A. W. P. R. Co., supra; Mauldin v. Mauldin, supra. No part of said act was intended to change or changed the requirements of service or acknowledgment of service as previously provided by law. Hendrix v. Toledious, 80 Ga. App. 160, 161 ( 55 S.E.2d 752), and cit.; Godwin v. Atlanta Steel Co., 82 Ga. App. 391 ( 61 S.E.2d 155).
It follows that the unverified statement and certificate of counsel for the plaintiff in error that he had delivered a copy of the bill of exceptions to counsel of record for the defendant in error in person is not sufficient and the writ of error must be
Dismissed. Townsend and Carlisle, JJ., concur.