Central of Ga. Ry. Co. v. Carroll

DOWDELL, J. — The complaint, as originally filed, contained two counts. Demurrers were interposed to each count and were by the court sustained. It appears from the judgment entry that, by leave-of the court, after ruling on demurrers, the complaint was amended, and demurrers were refiled to the complaint as amend [62] ed, winch demurrers were overruled. It does uot appear from the record in what the amendment to the complaint consisted. We therefore are unable to- review the court’s action in overruling the demurrers to the complaint as amended. Other assignments of error relate to questions which can be considere^ on appeal only when presented by a proper bill of exceptions. The bill of exceptions in this case appears to have been signed by the presiding judge on the 31st day of July, 1905. This was after the adjournment of the court. The court convened on Monday, the 1st day of May, 1905, and under the law the time was fixed at four weeks. The time, therefore, by operation of law expired on the 28th day of May. — See Gen. Acts 1903, p. 149. It does not appear from the record proper that any order was made by the court in term time for the signing of the bill of exceptions in vacation. It is true that the bill of exceptions contains a recital to the effect that an order was made by the court that the defendant be allowed 30 days in which to prepare and have signed his bill of exceptions. But under former rulings of this court we cannot look to the bill of exceptions for an order of the court which should otherwise appear of record proper. It has, time and again, been held by this court that the bill of exceptions cannot be looked to or considered for any purpose if signed’in vacation, when not done in pursuance of the requirements of the law. The recital in the bill of exceptions that an order was made by the court is nothing more nor less than a mere statement by the presiding judge that such was a fact. Such an order is a matter of record, and cannot be supplied by the statement of the presiding judge. ■ The bill of exceptions in this case, having been signed in vacation, cannot, therefore, be considered by us for any purpose. No error appearing of record, the judgment will be affirmed. Affirmed. Weakley, O. J., and Haralson and Denson, JJ.. concur.- '