Where this court, on consideration of a former petition for mandamus to compel a trial judge to certify a bill of exceptions, has ruled that the trial judge properly ordered the plaintiff in error to delete argument in support of his motion to dismiss certain processioning proceedings; and, where on the retendering of the bill of exceptions in the same case it appears that such argument is still included and the trial judge certifies the bill of exceptions as true as to the grounds of the motion to dismiss the processioning proceeding but qualifies his certification of the bill of exceptions with the statement that he does not certify that the facts contained in the argument in support thereof are true, this court, on considering the second petition for mandamus in the same case, seeking to compel the trial court to certify the bill of exceptions without qualification, will not issue a writ of mandamus nisi.
Following the decision of this court in Henry v. Davis, 98 Ga. App. 737
(107 S. E. 2d 236), refusing to issue a mandamus absolute to the Hon. J. W. Davis, Judge of the Superior Court of Walker County, to compel him to sign a bill of exceptions tendered to him by counsel for Rex Henry, the protestant on appeal from a processioning proceeding returned to the Court of Ordinary of Walker County, counsel for Henry, now plaintiff in error, redrew the bill of exceptions and retendered it to Judge Davis. In the first of four assignments of error it is alleged: "Be it further remembered that when said cause was called for trial, and before a jury was selected, protestant's attorney made a motion to dismiss said proceedings, urging before the court the following grounds of motion to dismiss: Mr. Gleason: May it please the Court, in regard to this case here, we want to make a motion to dismiss the processioner's proceedings themselves [on the grounds] that no application was made in writing to the processioners or that an application was sent to any of the processioners by the applicant to establish this line. Now the pleadings in this case consist of the following documents: A letter dated March 20, 1956, addressed to Mr. Rex Henry which is as follows: 'Dear Sir: This is to notify you that on April 4, 1956, the county surveyor and county processioners will be at my place at 8:30 A. M. to settle the disputed line, Block 20, and you are requested to be there. Signed C. L. Crabtree.' Now down at the bottom of that is written: 'Processioners, W. R. Stocks, J. F. Ricketts, and John A. Maddox, John A. Madaris.' It appears further from the proceedings in this case that that letter was sent by registered mail by Mr. Crabtree, the applicant, to Mr. Rex Henry. Now, then, the other proceedings in the case are, a survey by Mr. Justus; a certificate of the surveyor, which as I understand it, has been filed by an amendment, and the protestant's appeal; that's Mr. Henry."
To the bill of exceptions, as redrawn and retendered, on December 17, 1958, the judge attached the following certificate: "I do certify that the foregoing bill of exceptions is true, and specifies all of the record and specifies all of the evidence material to a clear understanding of the errors complained of. I certify that the foregoing bill of exceptions correctly states and truly relates the grounds of the motion to dismiss stated by counsel for plaintiff in error, but I do not certify that the statements of fact made by counsel in urging said motion are true. . . ."
In refusing to issue a mandamus absolute on a former petition in this case, this court ruled that the plaintiff in error was entitled to enumerate the grounds upon which his motion to dismiss the processioning proceeding was made, but also ruled that argument in support of such grounds and colloquies between counsel and counsel and the court were properly ordered deleted from the bill of exceptions. This court also ruled that the notice, dated March 20, 1956, to Rex Henry, protestant, from C. L. Crabtree, applicant, specified by the plaintiff in error as material to a clear understanding of the errors of which complaint was made, was properly ordered deleted from the bill of exceptions as the trial court's objection stated that such notice was never introduced in evidence. Consequently, so much of the first assignment of error as purports to state of what the pleadings in the case consisted (See italicized portion of the assignment of error in the foregoing statement of fact) must be deleted from the bill of exceptions as the court in its certificate refused to certify that such allegations are true.
111), in stating the reasons which will justify the trial court in declining to certify a bill of exceptions, Judge Russell, speaking for the court stated: "It must be either because the bill of exceptions is presented too late, or because the statements of fact relating to the proceeding it is sought to review are untrue, or because the counsel has declined to correct the bill of exceptions in accordance with the direction of the court, or some such similar matter, which does not in anywise relate to the sufficiency or merit of the exceptions which the application for the writ of error seeks to present to the higher court." See also Covin v. Willie, 19 Ga. App. 259 (91 S. E. 278).
Where the trial court signs a certificate to a bill of exceptions but qualifies the certificate by certifying that certain recitals of fact contained in the bill of exceptions are not true, the certificate, in legal effect, is a nullity and amounts to no more than a refusal to sign the bill of exceptions. McBurney v. Anderson, 78 Ga. App. 776 (52 S. E. 2d 519).
Consequent upon what has been ruled above, this court, in compliance with its first duty in considering a petition for mandamus to compel a trial judge to certify a bill of exceptions, has determined that the petition here does not state a legal cause for the issuance of the writ. N. A. A. C. P. v. Pye, 96 Ga. App. 685
(101 S. E. 2d 609). The writ is denied and the petition is dismissed.
Mandamus nisi denied. Felton, C. J., and Nichols, J., concur.