
    21169.
    STEWART v. STEWART et al.
    
   Almand, Justice.

The certificate of the trial judge to the bill of exceptions in this case was dated December 10, I960. An affidavit by counsel for the plaintiff in error as to service on December 24, I960, shows that service of the bill of exceptions was not perfected within 10 days, as required by the provision of Code Ann. § 6-911. Since there was no showing that the defect of late service was waived by the defendants in error, the writ of error must be dismissed.' This is true even though the plaintiff in error, after the trial judge had signed the bill of exceptions now before the court, applied to this court for mandamus to require the trial judge to certify the bill of exceptions that was tendered to him, counsel contending that the bill of exceptions that the trial judge signed was a nullity, and that he should be required to sign the bill of exceptions that was tendered him prior to the signing of the bill of exceptions now under review. ’ The contention of the plaintiff in error that, under the ruling of this court in State Department of Revenue v. McCray, 215 Ga. 678 (113 S. E. 2d 132), the pendency of the application for mandamus in this court to require the trial judge to certify the bill of exceptions tolled the time required by law to serve opposite counsel with the bill of exceptions, has no application here. In that case, the bill of exceptions had not been signed at the time the application for the writ pended in this court. Here the bill of exceptions had been signed and by mandamus the plaintiff in error was seeking to require the trial judge to sign another bill of exceptions. In such a situation the pendency of the mandamus proceeding in this court did not relieve the plaintiff in error from complying with the statute as to serving the defendants in error 10 days after certification.

Argued February 13, 1961

Decided March 9, 1961.

James B. Venable, D. M. Johnson, James 0. Goggins, for plaintiff in error.

Noah J. Stone, Lee Hutcheson, Thos. 0. Davis, contra.

Writ of error dismissed.

All the Justices concur.  