Strickland Motors Inc. v. Hudson

Sutton, C. J. “The law relative • to notice to the opposing party or counsel before certification of a bill of exceptions, or a waiver of such notice, or approval of the averments of fact in a bill of exceptions, did not alter or change the requirements under existing law relative to service, waiver of service, or acknowledgment of service of a bill of exceptions, and there being in this case no return of service of the bill of exceptions upon the defendant in error indorsed upon or annexed to the bill of exceptions, and no waiver of such service or acknowledgment thereof appearing, this court is without jurisdiction to entertain the writ of error, and if the court has no jurisdiction, it will dismiss the writ whenever and however the same may appear.” Godwin v. Atlantic Steel Co., 82 Ga. App. 391 (61 S. E. 2d, 155), and citations. The certificate of counsel for the defendant in error on the bill of exceptions in the present case, preceding the signature of the trial judge, to wit, “The undersigned, John L. Hudson Jr., or his attorneys of record, Foley-Chappell-Kelly & Champion, hereby waives service of the notice of the intention of Strickland Motors Inc. to present the bill of exceptions to the trial court for. approval as required by law, and all other and further notice of the same is hereby waived,” is not an acknowledgment of service, as provided for in the Code, § 6-912, nor a waiver of service of the bill of exceptions, but is a certificate and waiver in compliance with the provisions of the Code (Ann. Supp.), § 6-908.1; and no entry of service or acknowledgment of service appearing on the bill of exceptions, this court is without jurisdiction to entertain the same, and the writ of error must be dismissed. Henry v. Gillis, 204 Ga. 397 (50 S. E. 2d, 73); Salvation Army v. Eleventh Hour Service Inc., 77 Ga. App. 196 (47 S. E. 2d, 893); Stepp v. North Georgia Feed &c. Co., 78 Ga. App. 240 (50 S. E. 2d, 377); Hendrix v. Toledious, 80 Ga. App. 160 (55 S. E. 2d, 752), and citations. Writ of error dismissed. Felton and Worrill, JJ., concur. *728 Wohlwender & Roberts, for plaintiff in error. Foley, Chappell, Kelly & Champion, contra.