Opinion
39817.
DECIDED NOVEMBER 28, 1962.
Appellate procedure. Burke Superior Court. Before Judge Anderson.
Joe Hill Smith, for plaintiff in error.
Fulcher, Fulcher, Hagler Harper, Gould B. Hagler, contra.
1. "Service of the bill of exceptions, or due and legal waiver or acknowledgment of service, is essential to give this court jurisdiction of the cause." Izlar v. Central of Ga. R. Co., 162 Ga. 558 ( 134 S.E. 315); Hampton v. State, 100 Ga. App. 195 (1) ( 110 S.E.2d 559); Scott v. State, 214 Ga. 860 ( 108 S.E.2d 692) and cit.
2. "Service of a bill of exceptions before it is certified by the trial judge is no service." Hampton v. State, 100 Ga. App. 195 (1), supra.
3. "Counsel for a party may acknowledge service and waive all defects in the service of a bill of exceptions before it is certified by the trial judge under the Code § 6-912, but unless such acknowledgment and waiver are made the bill of exceptions must be served after it has been certified by the judge and in the manner provided by law [i.e., under Code Ann. § 6-911]." Bush v. Smith, 77 Ga. App. 329 (1) ( 48 S.E.2d 582); McGreggor v. W. L. Florence Const. Co., 208 Ga. 176 (1) ( 65 S.E.2d 809) and cit.; Carnes v. Pittman, 209 Ga. 639, 642 ( 74 S.E.2d 852); LeBlanc v. Jolly, 92 Ga. App. 642 ( 89 S.E.2d 681).
4. The only entry on the bill of exceptions in this case, which is claimed to be an acknowledgement or waiver of service, is a handwritten statement immediately following the signature of the plaintiff in error at the end of the bill of exceptions and preceding and bearing the same date as the judge's certification. This entry is as follows: "Copy of foregoing received September 8, 1962, Gould B. Hagler, Attorney for employer and insurer." In numerous cases the appellate courts of Georgia have dismissed writs of error where the purported acknowledgment or waiver of service was expressed with more elaboration than in the present case. See Parker v. Parker, 208 Ga. 190 ( 65 S.E.2d 794); Statham v. Saxon, 210 Ga. 369 ( 80 S.E.2d 182); Tanner v. State, 214 Ga. 859 ( 108 S.E.2d 703); Scott v. State, 214 Ga. 860, supra; Universal C.I.T. Credit Corp. v. Johnson, 100 Ga. App. 754 ( 112 S.E.2d 280); Cauley v. Godwin, 102 Ga. App. 413 ( 116 S.E.2d 535).
As was pointed out in Carnes v. Pittman, 209 Ga. 639, 641, supra, the entry in the Parker case did not contain (as it does not in the instant case) the language, "service of the above and foregoing bill of exceptions acknowledged," or any similar language, nor was there any acknowledgment of "service" or any "waiver" of service. On the other hand, such language is used in all the cases in which the acknowledgment or waiver of service has been held to be sufficient. See Carnes v. Pittman, supra, (1); Perry v. Smith, 91 Ga. App. 538 (1) ( 86 S.E.2d 345); Bible v. Allday, 93 Ga. App. 231 (4) ( 91 S.E.2d 306); Parks v. Columbia Loan Co., 100 Ga. App. 239, 241 (1) ( 110 S.E.2d 777); Lightfoot v. Southeastern Liquid Fertilizer Co., 102 Ga. App. 512 (1) ( 116 S.E.2d 651), citing Stewart Oil Co. v. Schell, 212 Ga. 459 ( 93 S.E.2d 700).
Under the above authorities, the entry in the case at bar is insufficient to constitute acknowledgment or waiver of service under Code Ann. § 6-911. Without deciding the point, the most it might possibly be is a waiver of notice of presentation to the trial judge under Code Ann. § 6-908.1, which would still not be a compliance with Code Ann. § 6-911, which is essential to give this court jurisdiction. Branham v. Branham, 209 Ga. 373 ( 72 S.E.2d 713); Barbaree v. Coffin, 212 Ga. 370 ( 92 S.E.2d 860) and cit., Scott v. State, 214 Ga. 860, supra.
There being no return of service nor acknowledgment or waiver thereof on the bill of exceptions, the motion to dismiss the writ of error is therefore granted and the writ is
Dismissed. Bell and Hall, JJ., concur.