
    SMITH & COMPANY v. HIRSCH & COMPANY.
    1. The motion, to dismiss must be sustained, there being no entry of service and no acknowledgment of service entered upon or attached to the bill of exceptions.
    2. An affidavit of the clerk of the superior court, attached to the brief of counsel for plaintiff in error, setting forth reasons why there had been no service of the bill of exceptions, can. not be considered in answer to a motion to dismiss.
    Submitted January 25,
    Decided February 13, 1904.
    
      Motion to dismiss the writ of error.
    
      G. A. Whitaker, for plaintiffs in error.
    
      E. K. Wilcox and Barrs & Bryan, contra.
   Lamar, J.

There is no entry of service of the bill of exceptions endorsed thereon or annexed thereto; and for this reason, and on the authority of Akerman v. Neel, 70 Ga. 728, Crow v. State, 111 Ga. 645, and Hewell v. State, 117 Ga. 752, the motion to dismiss must be sustained. Attached to the brief of counsel for the plaintiff in error is an affidavit of the clerk of the superior court, giving reasons why there had been no service or acknowledgment of service. The cases above cited show that such affidavit can not be considered in answer to a motion to dismiss.

Writ of error dismissed.

All the Justices concur, except Simmons, G. J., absent.  