Wing v. Harris

Jackson, Chief Justice.

A motion is made to dismiss this writ of error on two grounds: first, because there is no certificate that the bill of exceptions is the true, original bill of exceptions; and second, because it was served after having been filed in the clerk’s office.

1. The writ of error must be dismissed on the first ground. Counsel for plaintiff in error moved to withdraw the bill of exceptions, and have it returned to the clerk, that he might certify it according to Jaw. That has been frequently done; but in this case, it cannot be allowed, for the reason that the bill of exceptions has been blurred and blotted by having the first filing of it by the cleric obliterated by counsel for plaintiff in error. When it was so filed, it became the paper upon which was the writ of' error that authorized this court to review the case below and any alteration of it by obliteration of anything in, or upon it, by counsel, was an illegal alteration of tlie paper, which, when filed, contained that writ of error, and was an essential part of the record to be forwarded here ; indeed, it was the paper which alone gave this court jurisdiction to hear this cause. Therefore this court will not send it back to have a proper certificate put upon it by the clerk, when counsel altered it, no matter how honestly or with what good intentions the obliteration was made. Markham vs. Huff, 72 Ga., 106, 110, 112; Darby vs. The Wesleyan Female College, 72 Id., 212; Davis vs. Bennett, Ib., 763, 766.

2. If service of this writ of error had been made by the sheriff, by that officer’s handing a copy thereof to the defendant in error after it was filed, without any alteration or obliteration of entries upon it, the case would not have been dismissed, on the ground that it was so served after the filing; but when this obliteration was made, no copy of the pure paper, with the official entries thereon, could be served by the sheriff; but the service must have been with a copy of something else than the original bill of exceptions with the official entries upon it; and therefore no service of the true, original bill of exceptions. Therefore the writ of error must be dismissed on both grounds, and for thésame cause in .both, because of the obliteration of the clerk’s entry thereon. The court must guard its records from all alterations by parties or their counsel; and especially the bill of exceptions, which is that paper that the presiding judge’s signature to its correctness makes the only authority for jurisdiction in this court.

Writ of error dismissed.