American Iron & Metal Co. v. Davidson, 38225

• Citation: 115 S.E.2d 229,101 Ga.App. 633
• Decision Date: 11 May 1960
• Docket Number: No. 2,No. 38225,38225,2
• Parties: AMERICAN IRON & METAL COMPANY v. Ellen C. DAVIDSON
• Court: Georgia Court of Appeals

Page 229

115 S.E.2d 229

101 Ga.App. 633

AMERICAN IRON & METAL COMPANY v. Ellen C. DAVIDSON.

No. 38225.

Court of Appeals of Georgia, Division No. 2.

May 11, 1960.

M. L. Kahn, Atlanta, for plaintiff in error.

Poole, Pearce & Hall, William B. Paul, Jr., Atlanta, for defendant in error.

Syllabus Opinion by the Court

GARDNER, Presiding Judge.

Counsel for Mrs. Ellen C. Davidson (defendant-in-error) has filed a motion to dismiss the writ of error filed by American Iron and Metal Company (plaintiff-in-error) on two grounds.

1. The first ground of the motion to dismiss alleges that the Court of Appeals has no jurisdiction of this case for the reason that it consists of an appeal by direct bill of exceptions from a judgment in the Civil Court of Fulton County in a case involving less than $300. The record shows that the amount involved is $161.12. The Court of Appeals has no jurisdiction in a case brought by a direct bill of exceptions from the Civil Court of Fulton County when the amount is less than $300. In Milikin v. Johnson, 78 Ga.App. 479, 51 S.E.2d 561, this court set out the provisions in regard to this point as is shown in Ga.L.1933, p. 290 et seq., that where the amount involved was more than $300, such could be brought to the Court of Appeals by a direct bill of exceptions. It follows that the converse verse is true. In that case the court went on to say: 'This being an appeal by a direct bill of exceptions to this court from a judgment in a case in the Civil Court of Fulton County, wherein the amount involved is less than $300, and the defendant in error having filed a timely written motion to dismiss the appeal for want of jurisdiction in this court to entertain the same, the motion to dismiss is sustained and the writ of error is dismissed.' There were many cases cited to support that ruling. See also Pendley v. Union Bankers Ins. Co., 99 Ga.App. 189, 107 S.E.2d 910. It follows that the Court of Appeals has no jurisdiction of the matter at issue.

2. The second ground of the motion to dismiss concerns consideration of evidence admitted and considered by the trial court, but not brought up to this court in the method provided by law. The record before us shows that the only evidence which is before the Court of Appeals is incorporated in a stipulation of fact. There is nothing in the bill of exceptions to enlighten us as to the evidence. In Willcox v. Cobb, 58 Ga.App. 39, 42, 197 S.E. 517, 519, this court said: 'This case was submitted to and passed on by the court upon an agreed statement of facts, which was not embodied in the bill of exceptions or attached as an exhibit thereto and properly identified by the trial judge, but it was signed only by counsel for the parties. This agreed statement can not be considered by this court. 'In the transcript sent up by the clerk as record, a paper which purports to be a copy of an agreed statement of facts cannot be considered as record, the same not having been approved by the trial judge and made a part of the record, where it only appears that such agreed...