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Lawskills.com Georgia Caselaw
GILES et al. v. PEACHTREE PANTRIES INC. et al.
18065.
CANDLER, Justice.
Receivership, etc. Before Judge Guess. DeKalb Superior Court. October 6, 1952.
Industrial Loan & Investment Co., 182 Ga. 738 (186 S. E. 832); Wofford Oil Co. v. City of Atlanta, 183 Ga. 492 (188 S. E. 691). A determination of the question presented involves necessarily a consideration of the evidence; and questions involving a consideration of the evidence will not be considered by this court where the evidence is not properly brought up. Sayer v. Brown, 119 Ga. 539 (45 S. E. 649); Smith v. Zachry, 128 Ga. 290 (57 S. E. 513). Concerning the procedure to be employed in bringing evidence to this court for the review of litigation, it is a settled rule of practice in this State that the evidence must be brought up in the bill of exceptions or attached thereto as exhibits duly and properly identified by the trial judge or be embodied in an approved brief of the evidence and brought up as a part of the record. See Attaway v. Duncan, 206 Ga. 230 (1) (56 S. E. 2d, 269), and citations. In this case, after the judge's certificate, there is attached to the bill of exceptions an exhibit which purports to be a brief of the evidence, but it is not identified or authenticated as such in any way by the trial judge; and following our very recent ruling in Cornett v. Justice, 209 Ga. 375 (72 S. E. 2d, 724), and the cases there cited, we must and do hold that the rule for bringing up evidence has not been complied with in the instant case; and, since the burden is on one asserting error to show it, affirmatively by the record ( Smith v. State, 203 Ga. 636, 47 S. E. 2d, 866), and this can be done in the case at bar only by a consideration of the evidence, we will assume that the judgment complained of is correct and affirm it. See, in this connection, Roberts v. City of Cairo, 133 Ga. 642, 644 (66 S. E. 938).
Judgment affirmed. All the Justices concur, except Atkinson, P. J., and Wyatt, J., not participating; and Almond, J., who dissent, for the reasons stated in the dissenting opinion in Blackwell v. Farrar, 208 Ga. 757.
Thomas B. Branch, J. A. McCurdy and O. C. Hancock, contra.
Young H. Fraser and H. O. Hubert Jr., for plaintiffs in error.
SUBMITTED JANUARY 15, 1953 -- DECIDED FEBRUARY 9, 1953 -- REHEARING DENIED FEBRUARY 25, 1953.
Saturday May 23 04:10 EDT


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