Engel v. Speer , 36 Ga. 258 ( 1867 )

Warner, C. J.

This is an application for mandamus nisi against Judge Speer under the 4166th section of the Code. This section of the Code provides, that if from any cause, a bill of exceptions is not certified by the Judge, without fault of the parly tendering the same, he may apply to this Court for mandamus, etc. The petition for mandamus must set out substantially the bill of exceptions tendered, and shall be verified by the attorney as to the truth of the bill as tendered, and by the party or his attorney, as to the other facts stated therein.

This application is not verified by the oath of anybody; but it is not excepted to on that ground by the opposite party. It appears, however, upon the face of the application, that six months had elapsed from the time of the trial in the Court below, until the bill of exceptions was presented to the presiding Judge, who refused to sign and certify the same because it had not been presented to him within thirty days from the adjournment of the Court, and that so long a time had elapsed since the trial, that he had forgotten the facts and law involved in the case.

But it is insisted here, that the attorneys of the parties had in writing, waived the time, for their mutual convenience, and that all the evidence and law points taken in the case, were on file in the Clerk’s office. Upon the state of facts apparent on the face of this application, can it be said that this bill of exceptions was not certified and signed by the presiding Judge within the time prescribed by law, without the fault of the party tendering it ?

The reply is, that the parties agreed in writing, for thfir mutual convenience, to waive the time. The answer is, that parties by their agreement, for their mutual convenience, cannot repeal the law, which requires the bill of exceptions to be presented within thirty days after the adjournment of the Court, and present the same six months thereafter. The presiding Judge has certain rights under the law, of which the parties, for their mutual convenience, cannot deprive him. Creditors and other parties interested in the judgments and proceedings of the Court below, may have rights under the law, of which the parties by their agreement, for their mutual convenience, cannot deprive them.

Let the application for mandamus be refused.