State Highway Dept. v. Attaway, 37022

• Citation: 102 S.E.2d 514,97 Ga.App. 140
• Decision Date: 11 February 1958
• Docket Number: No. 1,No. 37022,37022,1
• Parties: STATE HIGHWAY DEPARTMENT v. J. G. ATTAWAY
• Court: Georgia Court of Appeals

Page 514

102 S.E.2d 514

97 Ga.App. 140

STATE HIGHWAY DEPARTMENT v. J. G. ATTAWAY.

No. 37022.

Court of Appeals of Georgia, Division No. 1.

Feb. 11, 1958.

Eugene Cook, Atty. Gen., Paul Miller, E. J. Summerour, Lamar L. Murdaugh, Asst. Attys. Gen., for plaintiff in error.

Cohen Anderson, Statesboro, for defendant in error.

Syllabus Opinion by the Court

NICHOLS, Judge.

'In a case involving questions of law and fact, tried by a judge without the intervention of a jury, where no motion for new trial is made, and a bill of exceptions is sued out, assigning error upon the judgment rendered by the trial judge, 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. Robinson v. Woodward 134 Ga. 777, 68 S.E. 553; Scott v. Wage Earners Loan, etc., Co., 147 Ga. 576, 94 S. E. 1021; Leggett v. Pridgen, 150 Ga. 115, 102 S.E. 829. See, also, Glover v. State, 128 Ga. 1, 57 S.E. 101; Blackman v. Garrett, 135 Ga. 226, 69 S.E. 110; Silvey & Co. v. Brown, 137 Ga. 104, 72 S.E. 907; Town of Fairburn v. Edmondson, 160 Ga. 792, 129 S.E. 108. 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 statement was signed by counsel and filed in the office of the clerk. Robinson v. Woodward, * * * and Scott v. Wage Earners Loan, etc., Co., supra.' Federal Investment Company v. Ewing, 165 Ga. 435 (1), 141 S.E. 65.

2. 'Where a case is submitted to the trial judge to pass upon all questions of law and fact without the intervention of a jury, and he renders judgment in favor of the plaintiff, this court will presume, in the absence of the evidence introduced before the judge and upon which he acted in rendering judgment, that he had before him ample evidence to support his judgment, and that therefore the judgment is not contrary to law or the evidence.' Federal Investment Company v. Ewing, supra, headnote 2. See also, Willcox v. Cobb, 58 Ga.App. 39, 197 S.E. 517, and Dean v. Ross, 62 Ga.App. 60, 7 S.E.2d 411.

3. Applying the above law to the facts in the present case where the action brought by J. G. Attaway, trading as J. G. Attaway Construction Company, against the State Highway Department...