Dodd v. State

Gtjekry, J.

Under the Civil Code (1910), § 6153, it must affirmatively appear from the bill of exceptions or the entries thereon, or the record, that the bill of exceptions was presented within twenty days from the rendition of the decision complained of. Evans v. State, 112 Ga. 763 ( 38 S. E. 78 ); American Freehold Land Mortgage Co. v. Walker, 115 Ga. 737 ( 42 S. E. 59 ); Harris v. State, 117 Ga. 13 ( 43 S. E. 419 ); Crawford v. Goodwin, 128 Ga. 134 ( 57 S. E. 240 ); Sweat v. Georgia Naval Stores Co., 129 Ga. 571 ( 59 S. E. 273 ) ; Milling v. State, 145 Ga. 37 ( 88 S. E. 554 ) ; Hurst v. State, 145 Ga. 164 ( 88 S. E. 930 ) ; Jones v. State, 146 Ga. 8 ( 90 S. E. 280 ) ; Wallace v. State, 16 Ga. App. 30 ( 84 S. E. 486 ), and cit.; Tuggle v. State, 30 Ga. App. 670 ( 118 S. E. 778 ). While it is true that “where it is recited in a bill of exceptions that it was tendered to the judge within the time prescribed by law,” and this recital is certified by the judge as true, the recital will not1 be disregarded, even though the certificate of the judge is dated after the time for presentation has expired (Moore v. Kelly, 109 Ga. 798 , 35 S. E. 168 ; Proctor v. Piedmont Portland Cement Co., 134 Ga. 391 , 67 S. E. 942 ; Neal v. Mathews, 27 Ga. App. 806 , 110 S. E. 24 ) ; but where it appears, as in this case, that the motion for new trial was overruled on August 30, and it also appears from the bill of exceptions itself that the same was not presented until September 20, a recital contained therein that it was within the time prescribed by law will not prevail, to give this court jurisdiction, and such bill of exceptions is and must be dismissed. See Breedlove v. Liberty Mutual Insurance Co., 46 Ga. App. 465 ( 168 S. E. 91 ); McCrory v. State, 42 Ga. App. 287 ( 155 S. E. 781 ). .

Writ of error dismissed.

Broyles, C. J., and MacIntyre, J., eoneur.

J. H. Kirby, R. K. Kirby, for plaintiff in error. H. G. Vandiviere, solicitor-general, contra.