Perry v. Higgs

[44] By the Court. Lumpkin, J. delivering the opinion. [1.] file certificate of the Circuit Judge, it is evident, bears an erroneous date; and yet the record furnishes nothing by which to correct this mistake. If it did, it would be amendable, according to the truth of the case. The Act of 1845 required the bill of exceptions to be drawn up and submitted to the Judge before whom the cause was tried, within four days after the trial thereof. This provision was so far altered by the Act of 1847, as to allow the bill of exceptions to be drawn up and submitted, for the signature and certification of the Circuit Judge, within thirty days after the close of the term in which said cause was heard. As before remarked, the signature and certification being dated a day previous to the trial, and the record affording no data by which to relieve the difficulty, and fix the true date, the defect would seem to be incurable. [2.] The other objection is equally fatal, viz : That, according to the record, thirty-five days elapsed between the signing and certifying of the bill of exceptions, and the issuing and serving of the citation and writ of error, and thirty-six days between the signature and certification of the bill of exceptions, and notice of the filing thereof. The writ of error must be dismissed.