G. E. C. Corp. v. Southern Fabricators, Inc.
| Decision Date | 15 September 1970 |
| Docket Number | No. 3,No. 45437,45437,3 |
| Citation | 177 S.E.2d 497,122 Ga.App. 452 |
| Parties | G.E.C. CORPORATION v. SOUTHERN FABRICATORS, INC |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. (a) The trial court has jurisdiction after the case has been docketed in this court on appeal to order additional record sent to this court which was not designated by the appellant if in his discretion he is of the opinion that such material is necessary to this court in deciding the questions raised by the enumerations of error.
(b) An appellant may designate as a part of the record on appeal all, none, or such part of the transcript of evidence, including documentary evidence, as is necessary to be considered by this court in deciding the questions before it.
(c) Where additional portions of the transcript were ordered to be prepared and forwarded to this court by the trial court on its own motion, the cost of such additional record will not be assessed against the appellee.
2. Where a motion to dismiss a complaint is based on an alleged state of facts and no evidence is put forward to sustain the truth of the allegations, it is proper to deny the motion.
3. The charge of the court was without error.
This is an action for recovery of a balance due on an account for the furnishing of certain fabricated materials made up and installed by the plaintiff in an apartment project being constructed by the defendant. On the trial of the case the defendant did not contend either that the work was unsatisfactory or that the price charged was inaccurate, but based its defense primarily on the proposition that all its dealings had been with an individual who was also an officer of the plaintiff corporation and that in consequence the plaintiff was not a proper party to bring this lawsuit. From a verdict for plaintiff the defendant appeals.
Crespi & Milam, Joseph S. Crespi, Clifford W. Milam, Atlanta, for appellant.
Dennis & Fain, Robert E. Corry, Jr., Atlanta, for appellee.
1. The notice of appeal includes as a part of the record on appeal the 'brief of evidence, omitting all exhibits.' After the record, including the brief of evidence, was filed in this court a supplementary record containing 150 pages of documentary evidence was sent up by order of the trial court for the stated reason that 'Code § 6-805(d) provides that the transcript on appeal shall contain copies or summaries of all documentary evidence.' Appellant moved that this court disregard the additional material as irrelevant and that the costs of transcribing same, which cost the appellant the added sum of $51 be taxed against the appellee.
(a) Rule 10 of this court, implementing Code Ann. § 6-809(b) provides for motions in this court for diminution of record where either party objects, or where this court wishes to require that additional portions of the record or transcript of proceedings be sent up. This is a procedure which fully protects both parties and this court in providing a full record before this court. However, under Code Ann. § 6-805(f) (f) if any material matter is omitted from the record on appeal the trial court of its own initiative may direct that the omission shall be corrected, either before or after the case is docketed here. The trial court, then, had jurisdiction on his own initiative to order omitted material sent to this court. That the transcript of evidence when brought here in a proper manner is a part of the 'record on appeal,' whether or not it is technically a part of the 'record' in the trial court, see Code Ann. § 6-802; Wright v. Roseman, 209 Ga. 176(6), 71 S.E.2d 426; Cornett v. Justice, 209 Ga. 375, 72 S.E.2d 724; Giles v. Peachtree Pantries Inc., 209 Ga. 536, 74 S.E.2d 545; Adams v. Morgan, 114 Ga.App. 180(2), 150 S.E.2d 556. The statute allows the trial court to retain some control over the record on appeal where in his opinion the appellate court could not properly understand or pass on his rulings unless it had before it material omitted from the appeal in the first instance but deemed necessary to a decision on the points of error raised by the litigants. Except for this circumstance, it would appear better practice for the party who feels that additional record is needed to file his objections under Rule 10 of this court.
(b) We do not, however, believe that a proper construction of Code Ann. § 6-805(d) necessitates the sending up of all documentary evidence in all cases on appeal where none of the litigants feel such evidence is necessary in this court in passing on the enumerations of error. In addition to Code Ann. § 6-805(f) above referred to, Code Ann. § 6-803 makes provision for the appellee, in a cross appeal to designate 'any portions of the * * * transcript designated for omission by the appellant and which the appellee desires included.' The statement to which the trial court apparently referred in Code Ann....
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...that court retains jurisdiction even after the case is docketed in this Court to add additional record (G. E. C. Corp. v. Southern Fabricators, Inc., 122 Ga.App. 452(1a), 177 S.E.2d 497), and "is still the final arbiter of any differences in the preparation of the record." Miller v. State, ......
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