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JORDAN, Presiding Judge.
Action for damages. Dougherty Superior Court. Before Judge Kelley.
Gibson Products Company, Inc., the defendant in a tort action for false arrest and malicious prosecution, filed a timely notice of appeal from an adverse judgment, specifying for inclusion with the appeal a transcript of the evidence and proceedings. After obtaining repeated extensions of time to file the transcript, and being unable to agree with the plaintiff on a narrative statement, the trial judge in the meantime having died, the time in which the defendant could perfect this appeal expired. The defendant then filed an extraordinary motion for new trial, relying on the above circumstances and a showing that the notes and tapes essential to a preparation of the transcript could not be located, and that it would be impossible to obtain a transcript. This motion includes allegations concerning errors believed to have occurred in the trial of the case and a further allegation that a transcript of the evidence and the charge of the court was necessary for appellate review. The plaintiff concurs in this statement "except the contention that there existed errors in the trial." The present appeal is from the order overruling the defendant's extraordinary motion for a new trial. Held:
By its express terms 60 of the CPA (Ga. L. 1966, pp. 609, 662; 1967, pp. 226, 239, 240; Code Ann. 81A-160) sets forth the only means available to attack a judgment obtained in a civil proceeding (other than appellate review as elsewhere provided) and includes therein (Subsection (c)) a motion for new trial, which under the law already in effect before the CPA must be made within 30 day's of entry of judgment "except in extraordinary cases" (Ga. L. 1965, pp. 18, 30; Code Ann. 70-301), but the statutory law is silent as to what constitutes an extraordinary case.
The extraordinary circumstances here shown consist of the loss of the notes and tapes essential to the preparation of a transcript, the death of the trial judge, and the liability of the parties to agree on a narrative statement. While these unfortunate circumstances may have prevented the defendant from perfecting an appeal, if a transcript is essential to a consideration of alleged errors during the course of the trial, they are not extraordinary circumstances which would probably produce a different result in the event of another trial. Whatever may be the rule in other jurisdictions, the inability to show error in a trial, nothing more appearing, is insufficient to warrant the grant of a new trial. In numerous cases this court, as well as the Supreme Court, has refused to disturb the ruling or judgment of the lower court where a consideration of the evidence was essential to a determination of whether harmful error occurred, including cases where the deficiency was wholly attributable to the court reporter and without any fault of the appellant. See Reed v. Peeples, 220 Ga. 226 (138 SE2d 277); Western & A. R. Co. v. Callaway, McCarty & Gregory, 111 Ga. 889 (36 SE 967); Cooper v. Brock, 117 Ga. App. 501, 505 (161 SE2d 75); Seaton v. Redisco, Inc., 115 Ga. App. 80 (153 SE2d 728).
Charles W. Hill, Burt & Burt, Donald D. Rentz, for appellee.
Smith, Gardner, Wiggins & Geer, James W. Smith, Watson, Keenan, Spence & Lowe, Stuart Watson, for appellant.
Friday May 22 17:39 EDT

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