Anglin v. Reid

Stephens, P. J. Service of a bill of exceptions on a defendant in error must be made within ten days after its certification by the trial judge, unless a failure to serve the bill of exceptions within the required ten days is waived. Where a bill of exceptions was certified by the judge on April 22, 1938, the following acknowledgment of service by counsel for the defendant in error, made on May 16, 1938, which was more than ten days after the date of the certification of the bill of exceptions by the judge, did not constitute a waiver of the failure of the plaintiff in error to perfect service within the ten days required: “I, H. S. Brooks, attorney for the defendant in error, hereby acknowledge service of the within bill of exceptions. All other and further notice and service waived. May 16, 1938. Time of service not waived.” It not appearing that service had ever been perfected upon the defendant in error, and there being no acknowledgment of service other than as above indicated, and the defendant in error not appearing in this court and consenting that the case be heard, the motion to dismiss the writ of error on the ground that service was not perfected within the time required, and that the failure of the plaintiff in error to perfect such service within such time was not waived, must be sustained. Code, §§ 6-911, 6-912 (Civil Code of 1910, § 6160 (1, 2, 3)); Spratt Chair Company v. Ætna Insurance Co., 154 Ga. 840 (115 S. E. 647); Bussell v. Savannah Guano Co., 39 Ga. App. 613 (147 S. E. 914). Writ of error dismissed. Sutton and Felton, JJ., concur.