White v. Hutcheson

Per Curiam. This is a mandamus proceeding seeking to compel a trial judge to certify a bill of exceptions complaining of his refusal to vacate his judgment making the previous judgment of this court the judgment of the court below, in order to permit the defendants to amend their answer. The previous judgment of this court operated to affirm the previous judgment of the court below in favor of the plaintiff: in that court, on condition that the plaintiff write off from its judgment the item for attorney’s fees at the time the judgment of this court was made the judgment of the court below. The only ground of the motion to vacate was that the judgment on the remittitur was entered without the ease being docketed and called, and without notice to the defendants. This being an application for mandamus to compel the judge to sign a second bill of exceptions, the court must look into the merits of the case. DuPre v. Humphries, 153 Ga. 884 (113 S. E. 204); Landers v. Cobb, 150 Ga. 80 (102 S. E. 428). The ground set forth in the motion to vacate the judgment being without merit, a mandamus must be refused, even though in their assignments of error in the tendered bill of exceptions the defendants now seek to attack the judgment refusing to vacate the judgment on the remittitur on various additional grounds, since the trial court was not required to vacate the judgment upon other grounds than the one stated in the motion. Mandamus nisi refused. Jenldns, P. J., and Stephens and Bell, JJ., concur.