Opinion
42068.
ARGUED JUNE 6, 1966.
DECIDED SEPTEMBER 7, 1966.
Appellate procedure. DeKalb Civil and Criminal Court. Before Judge Morgan.
Parks Eisenberg, David S. Eisenberg, for appellant.
William H. Whaley, for appellee.
The evidence adduced on the trial of this case was not taken down by a court reporter. Counsel for the plaintiff and the defendant were unable to agree upon a brief of the evidence. The trial judge was requested to conduct a hearing for the purpose of "settling the brief of evidence," which request was granted, and at said hearing, the trial judge refused to approve the proposed brief of evidence, and thereupon denied the appellant's motion for a new trial which was based upon the usual general grounds only. Under these facts, which are conceded by counsel for the appellant in their brief, appellant's enumeration of errors 1 and 2 are without merit, and since all of the other alleged errors enumerated present no question which can be determined without a consideration of the evidence adduced upon the trial of the case, and there being no certified or approved transcript or brief of such evidence, the judgment of the trial court must be affirmed. At the time it was overruled the motion for a new trial was ripe for determination, but since there was no proper transcript or brief of the evidence the better practice would have been to dismiss it. Since the legal effect of the judgment denying the motion was the same as a dismissal, such judgment will be affirmed. See Cain v. State, 131 Ga. 770 ( 63 S.E. 289).
Judgment affirmed. Felton, C. J., and Pannell, J., concur.