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Lawskills.com Georgia Caselaw
RUSSELL v. THE STATE.
25203.
UNDERCOFLER, Justice.
Appellate procedure. Muscogee Superior Court. Before Judge Davis.
MOBLEY, Justice, dissenting. Neither the Appellate Practice Act nor the rules of this court requires the enumeration of errors to be filed separately from the brief. Ga. L. 1965, pp 18, 29, as amended by Ga. L. 1968, pp. 1072, 1077 (Code Ann. 6-810), relied upon by the majority, provides in Section 14 that "The appellate court, by rule, may permit such enumeration to be made a part of the brief." This court has not adopted such a rule, but neither has it adopted one prohibiting this.
The cases cited in the majority opinion do not require a ruling that the enumeration of errors must be filed separately from the brief. Windsor v. Southeastern Adjusters, Inc., 221 Ga. 329, supra, is wholly different from this case. There, no enumeration of errors was filed, either as a part of the brief, or separately. Counsel admitted in his supplemental brief that an enumeration of error was separately prepared, but through inadvertence, or for other reason, was never filed. The appeal in the other case, Cagle v. F. A. C. Development Co., 224 Ga. 515, supra, cited in support of its ruling by the court, was properly dismissed, as nothing which could be considered an enumeration of errors was filed.
I am authorized to state that Justice Grice concurs in this dissent.
W. B. Skipworth, District Attorney, Frank K. Martin, Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Marion O. Gordon, Assistant Attorney General, Larry H. Evans, for appellee.
William S. Cain, for appellant.
SUBMITTED MAY 13, 1969 -- DECIDED JUNE 16, 1969.
Friday May 22 17:58 EDT


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