Transport Indem. Co. v. Hartford Ins. Co., A90A2281
| Decision Date | 04 December 1990 |
| Docket Number | No. A90A2281,A90A2281 |
| Citation | 198 Ga.App. 265,401 S.E.2d 294 |
| Parties | TRANSPORT INDEMNITY COMPANY et al., v. HARTFORD INSURANCE COMPANY. |
| Court | Georgia Court of Appeals |
Savell & Williams, Edward L. Savell, Atlanta, for appellants.
Drew, Eckl & Farnham, John P. Reale, L. Lee Bennett, Jr., John W. Sherrod, Atlanta, for appellee.
This is the second appearance of the case sub judice before this Court. See Hartford Ins. Co. v. Henderson & Son, 186 Ga.App. 592, 367 S.E.2d 859 (1988), aff'd 258 Ga. 493, 371 S.E.2d 401. Upon the remand of the case to the state court, fourth-party defendant Hartford Insurance Company moved for summary judgment. Lee Way Motor Freight, Inc., and Transport Indemnity Company, third-party defendants and fourth-party plaintiffs (appellants), appeal the grant of summary judgment in favor of Hartford Insurance Company. Held:
The notice of appeal directs that: "Inasmuch as the record is already in the Court of Appeals, the clerk will omit all except the following, which will be transmitted.
The clerk of the state court complied with the designation of record contained in the appellants' notice of appeal. Thus, the record, upon which our consideration of the present appeal must be made, consists of the record from the earlier appeal plus the subsequent items designated by appellants.
Upon reading the state court's order granting Hartford Insurance Company's motion for summary judgment, it is apparent that additional evidence was added to the record upon the remand of the case to the state court, including at least the endorsement to the insurance policy, BMC Form 32, which although not part of the record on the previous appeal was argued before the Supreme Court. Hartford Ins. Co. v. Henderson & Son, 258 Ga. 493, 495, 371 S.E.2d 401, supra. However, the record designated by appellants does not include any evidence added to the record following remand to the state court after the earlier appeal. In this regard, we note that the factual assertions contained in the parties' briefs to the state court are not evidence. Butterworth v. Pettitt, 223 Ga. 355, 357, 155 S.E.2d 20 (1967).
It is well established that the burden is on the party alleging error to show it affirmatively by the...
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...247 Ga. 463, 277 S.E.2d 16; Jackson v. Dept. of Transp., 201 Ga.App. 863, 865, 412 S.E.2d 847; Transport Indem. Co. v. Hartford Ins. Co., 198 Ga.App. 265, 266, 401 S.E.2d 294; Riverbend Ford-Mercury v. Kirksey, 196 Ga. App. 307, 309(1), 395 S.E.2d 898; Taylor v. Colwell Mtg. Corp., 187 Ga.A......
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Roach v. Roach, A98A1687.
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Kall v. State, A02A1560.
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