Williams v. Clarke , 70 Ga. 405 ( 1883 )

Jackson, Chief Justice.

The mandamus nisi is denied. The plaintiff’s counsel is in laches, or at fault, in the language of our Code. Service could have been made of the first bill of exceptions by him on counsel on the other side, and no reason is given why it was not done, or even that the counsel declined to acknowledge service. Code, §4268.

The fact that defendant himself did not receive the bill of exceptions until nine days after it was signed, cannot relieve the laches of the counsel who received it on the day it was signed and certified. The fact that the defendants to the bill of exceptions resided in different counties, and could not be as readily served, does not alter the case. The law allows but ten days for service; and makes no distinction, as respects time of service, between cases where there is one or a number of defendants, or between cases where all the defendants reside in the county of the venue, or some of '•them in other counties. The statute provides for non-residence of defendant and absence from home of his counsel, by authorizing service on the attorney by leaving a copy of the bill of exceptions at his residence. No excuse is made that this was not done. Code, §4259.

This court will always and in all cases reluctantly issue a mandamus nisi to the judge of the superior court to show cause why he did not sign and certify a second bill of exceptions in-the same case on the same points; it will never do so unless diligence be shown in respect to the first, and the case is exceptional by reason of providential intervention, or some other reason equally strong. In this case, there is laches and no good reason at all for the necessity of a second bill of exceptions.

Mandamus nisi denied.