Georgia Southern & Florida Railway Co. v. Pritchard

Cobb, J. 1. The clerk of a court of record is the custodian of its records and files, and the certificate of this officer as to what is contained in the record must always be looked to, in preference to any other evidence. As to matters occurring during the progress of the trial, which are not of record or of file in the office of the clerk, the judge’s certificate will control. But when a bill of exceptions purports to set forth a copy of what is of record or of file, and the recitals therein are at variance with what is contained in the record duly certified by the clerk, the certificate of. the clerk will be looked to rather than the recital in the bill of exceptions. See Southern Ry. Co. v. Flemister, 120 Ga. 526, and cit. 2. The copy certified by the clerk appears to be a process issued by one as “clerk” who is in fact clerk of the superior court, bears test in' the name of the judge of that court, and requires the defendant to appear at the next-court to be held for a given county. The words “county court” do not appear at all in this copy; nor does the word “county” appear anywhere as a term descriptive of the court referred to. One upon whom such a process was served could not be misled. It was returnable at a time when a regular term of the superior court would begin. It was signed by a person as “clerk” who was the clerk of the superior court, and bore test in the name of the judge of that court, and no other court was mentioned or referred to therein. The next court to be held in that county on the day named could not have been understood by the defendant to be other than a court in which the clerk who signed the [323] process and the judge in whose name it hore test were officers. The fact that the clerk was also clerk of the county court could not mislead, when there was no requirement that the defendant appear at the county court and when the process bore test in the name of the judge of the superior court. It may be that the copy process which was used in preparing the bill of exceptions contained the word “county,” but this does not appear from the record. What would be the result in the event this did appear we do not determine. The case of Cochran v. Davis, 20 Ga. 581, apparently rules that defects in the copy are immaterial if the original is correct; but a critical examination. of this case will show that what is said therein on this subject is obiter. If the-original process had been as set out in the bill of exceptions,-the case of Lowrey v. Railroad Company, 83 Ga. 504, would have been in point. , Judgment affirmed. All the Jiostices concur, except Simmons, C. J., absent.