Robinson v. Woodward

• Decision Date: 13 July 1910
• Citation: 68 S.E. 553,134 Ga. 777
• Parties: ROBINSON v. WOODWARD.
• Court: Georgia Supreme Court

68 S.E. 553

134 Ga. 777

ROBINSON

v.WOODWARD.

Supreme Court of Georgia.

July 13, 1910.

(Syllabus by the Court.)

Appeal and Error (§§ 522, 713*) — Exceptions, Bill of (§ 59*) — Record — Sufficiency of Bill of Exceptions.

The bill of exceptions recites that, upon the trial of a statutory complaint for land brought by the plaintiff in error against the defendant in error, the trial judge, upon an agreed statement of facts in writing, signed by counsel for both parties, decided that the title to the lands sued for was in the defendant and that the plaintiff do not recover same, to which judgment exceptions were had. The bill of exceptions contained an agreed statement of facts, wherein it was stated "that defendant claims said lots of land solely as such heir at law, and from no other source whatsoever, and that plaintiff claims said lots of land solely by reason of the instrument hereto attached, and that unless said instrument divested said Ashley O. Best of title, the ownership and title of said lots is in defendant." The bill of exceptions specified as a part of the record material to a clear understanding of the errors complained of, among other things, the agreed statement of facts and the instrument therein referred to. Neither a copy, nor any of the contents of the instrument referred to, was embodied in the bill of exceptions, or attached as an exhibit thereto, or contained in a brief approved by the trial judge and made a part of the record. In the transcript sent up by the clerk as the record, there appears what purports to be a copy of such instrument, and there appears what purports to be a copy of the agreed statement of facts signed by counsel for both parties and filed in the clerk's office, with what purports to be a copy of the instrument therein referred to as annexed thereto. Held:

(1) Where no motion for a new trial is made, the evidence should be embodied in the bill of exceptions, or attached as an exhibit thereto, and properly identified by the trial judge, or contained in a brief of the evidence approved by him and made a part of the record. McClarty v. Penn Mutual Life Ins. Co., 131 Ga. 724, 63 S, E. 224; Roberts v. Cairo, 133 Ga. 642, 66 S. E. 938.

(2) In the transcript sent up by the clerk as being record, those papers which purport to be copies of the agreement of counsel and of the instrument annexed thereto cannot be considered as record, not being approved by the trial judge and made a part of the record, it only appearing that such agreed statement of facts was signed by counsel and filed in the office of the clerk; and only the agreement of counsel as appearing in the bill of exceptions, with a mere reference to such instrument, can be considered. Cases cited supra; Dolvin v. American Harrow...