McCall v. Bentley

Little, J. 1. The failure of the clerk of the superior court to transmit to this court a portion of the record which has been specified in the bill of exceptions does not present a cause for dismissing a writ of error, unless it appears that the plaintiff in error is properly chargeable in some way as being the cause of such omission. It is incumbent on the plaintiff in error to have duly established in the court below a copy of such part of the record, and have the same transmitted. Proper diligence on his part in this respect will prevent dismissal. In the present case, the part of the record omitted is not, under the view which wre take of the case, material to a consideration of the same; and the motion to dismiss the writ of error is overruled. Blackwell v. Compton, 107 Ga. 764 ; Giles v. Parker, 108 Ga. 779. 2. When a paper purporting to be a certified copy of a deed is offered in evidence, it may be met by an affidavit of forgery under the provisions of the Civil Code, § 3628 ; and this is true notwithstanding the copy offered is of an original which is shown by such copy to be more than thirty years old. When such copy is met by an affidavit of forgery the burden is on the party offering the copy to show the execution of the original. Patterson v. Collier, 75 Ga. 419 ; Holland v. Carter, 79 Ga. 139 ; Jones v. Morgan, 13 Ga. 515; Bryan v. Walton, 14 Ga. 185. 3. This case is controlled on its merits, as well as upon the other grounds of the [753] motion for new trial, by the rulings in the case of Crummey & Hamilton v. Bentley, this day decided. Argued January 9, Decided February 7, 1902. Equitable petition. Before Judge Roberts. Wilcox superior court. June 14, 1901. J. H. Martin and J. L. Bankston, for plaintiff in error. J. W. Haygood and Eldridge Gutts, contra. Judgment reversed. All the Justices concurring, except Fish, J., disqualified.