Wren v. Josey

Gardner, Presiding Judge. The defendant in error filed a motion to dismiss the bill of exceptions on the ground that it was not presented within the time required by law. Under Code (Ann.) § 6-902 a bill of exceptions shall be tendered to the trial judge within 30' days from the date of the decision of [594] which complaint is made. The bill.of exceptions here shows that the motions for new trial and judgment notwithstanding the verdict were denied on January 25, 1958, and the bill of exceptions presented to and certified by the trial judge on February 25, 1958, or a period of 31 days. Counsel for plaintiff in error have filed an affidavit that the lateness was due to illness, and if there were any discretion on the part of this court to make exception to the rule in such cases, we would do so. However, time is a jurisdictional element of the appeal. Capers v. Ball, 211 Ga. 502 (87 S. E. 2d 85). It was held in Farmers & Traders Natl. Bank v. Willis, 122 Ga. 563 (50 S. E. 366) that not even the illness and death of the sole counsel for a nonresident litigant unaware of this fact would afford the Supreme Court grounds for.hearing and determining a writ of error not sued out within the time required by statute. Decided April 29, 1958 Rehearing denied May 7, 1958. N. J. Smith, for plaintiff in error. Marshall L. Fountain, George W. Fryhofer, contra. Accordingly, the writ of error must be Dismissed. Townsend and Carlisle, JJ., concur.