Opinion
33564.
DECIDED MAY 3, 1951.
Petition for mandamus.
Robert E. Andrews, for petitioner.
R. W. Smith Jr., Wheeler, Robinson Thurmond, for respondent.
1. The Court of Appeals is a court for the correction of errors of law only, and has no jurisdiction to her evidence aliunde the record or to decide disputed issues of fact.
2. Clerks of the superior and city courts are amenable to the writ of mandamus to require them to perform their duties when they refuse, or for any cause fail, to act. But if they act at all, however erroneously, they are not liable to this process.
3. Where counsel for the plaintiff in error presents a properly certified bill of exceptions to the clerk of the trial court with direction that he file it on a date agreeable to him within the fifteen-day period fixed by law, and the clerk, pursuant to this authority, marks the bill of exceptions filed on some date within this period of time, the date thus fixed by the clerk is the proper filing date of the instrument.
DECIDED MAY 3, 1951.
Mrs. Vallie Jones filed a petition in this court for the issuance of a writ of mandamus against R. W. Smith, Clerk of the City Court of Hall County, alleging substantially: that the petitioner is the defendant in error in a bill of exceptions filed in the Court of Appeals from the City Court of Hall County; that said bill of exceptions was certified by the trial judge on February 24, 1951, and on February 26, 1951, counsel for the plaintiffs in error handed the bill of exceptions to the defendant in his capacity as clerk of court, assuring him that he could take as much time as needed in transmitting the record to this court, which assurance was given without the knowledge or consent of the petitioner; that the defendant entered thereon a penciled notation, "2/26," indicating he had received the bill of exceptions on February 26; that on March 19 the petitioner had the defendant issue a fi. fa. for the amount of the judgment rendered in the petitioner's favor upon the trial of the case, which was on the same day delivered to the Sheriff of Hall County; that thereafter, on the afternoon of March 19, the petitioner's counsel was informed that the defendant was entitled to fifteen days in which to mark the bill of exceptions filed, and was in fact marking the bill of exceptions filed as of March 10 (which date was fourteen days after its certification by the trial judge) and this was done; and that the defendant on the same date allowed counsel for the plaintiffs in error to file a supersedeas bond, thus superseding the fi. fa. already issued. The prayers are that a rule nisi issue, and that the defendant be required to mark the bill of exceptions filed as of February 26, 1951.
A mandamus nisi issued from this court, in response to which the clerk of the court answered, denying certain material allegations of the petition with respect to the date of the filing of the bill of exceptions. It was admitted that counsel for the plaintiffs in error handed the respondent the bill of exceptions on February 26, 1951, but not for the purpose of having it filed on that date. The respondent alleged that there had recently been a three weeks' continuous session of the Superior Court of Hall County, of which the respondent is clerk, beginning on January 15, 1951, and also a regular term of the City Court of Hall County for one week, beginning on February 19, 1951. In the meantime, a lady helper and typist in the office was out on account of illness from January 19, 1951, until February 2, 1951, with the result that the accumulation of work in the office had placed an extra burden on the respondent, who had also been ill. Because of this state of facts, when the bill of exceptions was handed to the respondent he asked counsel for the plaintiffs in error if it would be agreeable to hold the bill of exceptions and not mark it filed then, but to hold it as late as would be necessary to enable the respondent to complete the record and discharge other daily duties required of him. Counsel for the plaintiffs in error stated that it was agreeable with him to hold the bill of exceptions and mark it filed at any time within the fifteen-day period allowed by law. The bill of exceptions was not tendered to him on February 26 for the purpose of being filed on that date, and counsel gave permission for the same to be filed on any date within fifteen days from February 24, the date of its certification.
1. The petition of the applicant for mandamus and the answer of the respondent, denying material portions of the petition, raise a question of fact as to whether the bill of exceptions was tendered to the clerk on February 26 to be filed immediately by him on that date, or was to be held by him and filed at a later date during the fifteen-day period from its certification by the trial judge, which is allowed by law for the filing thereof. The Constitution of this State provides that the Court of Appeals shall have jurisdiction for the trial and correction of errors of law from the superior and city courts in all cases in which such jurisdiction has not been conferred by the Constitution upon the Supreme Court. Code (Ann.), § 2-3708. The Court of Appeals is a court for the correction of errors of law only, and has no jurisdiction to hear evidence aliunde the record, or to decide disputed issues of fact. See Dover v. Harrell, 60 Ga. 111; Cooper v. Nisbet, 118 Ga. 872 ( 45 S.E. 692). The superior court has concurrent jurisdiction with the appellate court of a mandamus proceeding to compel a clerk to sign and transmit a bill of exceptions which has been duly certified by the trial court and either may entertain the petition and issue a mandamus nisi; but where it appears from the answer that an issue of fact is involved which will necessitate the hearing of evidence aliunde the record to determine the truth of the case, the superior court, and not the appellate court, is the proper forum. Cooper v. Nisbet, 118 Ga. 872 (supra).
2. "If any sheriff, clerk, or other officer shall fail to discharge any duty required of him by any provision of this Title, upon petition the appellate court, or the judge of the superior or city court, as the case may be, may compel the performance of such duty by mandamus." Code, § 6-918. In Duke v. Trippe, 6 Ga. 317, 321, the court in dealing with this statute ruled that the writ of mandamus lies against a judge, clerk, or sheriff who shall refuse or neglect to perform the duties imposed by law; but also held that, "If they act at all however erroneously, they are not . . liable to the process of mandamus." Here the clerk marked the bill of exceptions filed. It is contended that the filing date as endorsed on the same is erroneous. Therefore, applying the rule as laid down in Duke v. Trippe, supra, the clerk is not liable to the process of mandamus for the alleged erroneous filing date.
3. Moreover, it may be stated that, if the clerk took the bill of exceptions from the attorney for the plaintiffs in error with express authority from him to hold the same until some date suitable to the clerk within the fifteen-day period allowed by law, and within that time filed it, the bill of exceptions was properly filed by the clerk, where done in accordance with such instructions. The applicant here relies on Brinson v. Georgia R. Bank c. Co., 45 Ga. App. 459 ( 165 S.E. 321), and Hilt v. Young, 116 Ga. 708 ( 43 S.E. 76), in which cases it appears that motions for new trials were presented to the clerk at this office for immediate filing and without further instructions. The effect of these holdings is that when such documents are thus presented to the clerk, nothing else appearing, that is the filing date. In Cooper v. Nisbet, 119 Ga. 752 ( 47 S.E. 173), it is held in substance that legal filing means, not only that the papers be left in the clerk's office, but that direction be given the clerk in such manner that he may understand what is desired.
The prayer for mandamus absolute is denied, and the petition is dismissed. Sutton, C. J., Gardner, Townsend, and Worrill, JJ., concur. Felton, J., concurs in the judgment. MacIntyre, P.J., concurs specially.
"The act of a clerk in filing or transmitting a paper does not stand on the same basis as the act of the judge in signing the certificate to the bill of exceptions, which, with the bill of exceptions constitutes the writ of error. Generally, upon proper suggestion, made in due time, that the date of filing entered by the clerk upon the bill of exceptions was erroneous, the clerk will be ordered to certify to this court the correct date of filing. But his certificate can not be traversed, or extrinsic evidence be introduced to combat it. McDaniel v. Columbus Fertilizer Co., 109 Ga. 284 ( 34 S.E. 589.) . . No such application was made in this case, as in the case of Cooper v. Nisbet, 118 Ga. 872 ( 45 S.E. 692)." Cordray v. Savannah Union Station Co., 134 Ga. 865 (2b) ( 68 S.E. 697). There the clerk refused to act, that is, he refused to make any entry of the date of filing thereon. See also Southern Grocery Stores v. Greer, 68 Ga. App. 583, 587 ( 23 S.E.2d, 484).
"`The official entry made by the clerk of a trial court, as to the date on which a bill of exceptions was filed in his office, imports absolute verity, and can not be impeached in the Supreme Court [or Court of Appeals] by the production of aliunde proof that the bill of exceptions was, in point of fact, filed at an earlier date. Ga. Fla. Ala. Ry. Co. v. Lasseter, 122 Ga. 679, and cit.' Swafford v. Swafford, [ 125 Ga. 386, 53 S.E. 959]; Norris v. Baker County [ 135 Ga. 229, 69 S.E. 106]." Felker v. Still, 160 Ga. 104 (2a) ( 127 S.E. 609); Crawford v. Cook, 48 Ga. App. 456 ( 173 S.E. 187); Sweat v. Barnhill, 171 Ga. 294 ( 155 S.E. 18).
I think that, as no proper suggestion was made that the date of the official entry of filing of the bill of exceptions, to wit, "Filed in office this 10 day of March 1951," was erroneous, and the clerk of the trial court has not been ordered, therefore, to certify to this court the correct date of filing, the entry of filing on the original bill of exceptions in the office of the clerk of this court imports "absolute verity." In these circumstances, this court has no power to correct a mistake, if any, in the record as to the date upon which the bill of exceptions was filed in the office of the clerk of the trial court; and, the clerk of the trial court having made an official entry of the date of the filing of the bill of exceptions in his office, and transmitted the writ of error to his court in the manner provided by law, and there having been no refusal on the part of such clerk to act, I think that the application for mandamus, which was filed in this court in the case of C. G. Butler et al. v. Vallie Jones (No. 33556) should be dismissed and the mandamus absolute denied. See Code, § 6-812.
If the entry of the date of filing of the bill of exceptions be incorrect and should result in damage, the defendant in error will not be remediless. Livingston v. Barnett, 193 Ga. 640, 658 ( 19 S.E.2d 385).