Stephens v. Brown

Full title: STEPHENS et al. v. BROWN et al.; and vice versa

Court: Supreme Court of Georgia

Date published: Sep 28, 1964

138 S.E.2d 661 (Ga. 1964)

220 Ga. 317

Opinion

22585, 22586.

SUBMITTED SEPTEMBER 14, 1964.

DECIDED SEPTEMBER 28, 1964. REHEARING DENIED OCTOBER 13, 1964.

Equitable petition. Bartow Superior Court. Before Judge Davis.

Al D. Tull, for plaintiffs in error.

Jere F. White, contra.

GRICE, Justice.

The main bill of exceptions assigns error on the grant of a motion for new trial on two grounds complaining of erroneous charges to the jury. Plaintiffs in error contend that such charges, even if erroneous, were harmless in that a verdict in their favor was demanded by the evidence. However, no certification of approval by the trial judge is shown on the purported brief of evidence and there is no brief of the evidence incorporated in the certified bill of exceptions or attached thereto as an exhibit and identified by the trial judge. While the bill of exceptions recites that a brief of the evidence had been approved, there is no identification of the purported brief of evidence sent up with the record as being the one approved. Since the errors complained of require consideration of the evidence, we cannot, under these circumstances, determine whether error was committed, and therefore, the judgment granting the motion for new trial must be affirmed. Cobb v. DeLong, 216 Ga. 794 ( 120 S.E.2d 177).

Due to the foregoing disposition of the main bill of exceptions, the cross bill complaining of the denial of one of the other grounds of the motion for new trial must be dismissed.

Judgment affirmed on main bill of exceptions; cross bill dismissed. All the Justices concur.

SUBMITTED SEPTEMBER 14, 1964 — DECIDED SEPTEMBER 28, 1964 — REHEARING DENIED OCTOBER 13, 1964.