Kirby v. Lippincott, Ogelvie & Co.

Lumpkin, Justice. It appears from the bill of exceptions, that this case was tried by the judge below without the intervention of a jury. Error is assigned upon the judgment rendered, and also upon various rulings made during the trial. None of these can be intelligently passed upon without a consideration of the evidence, which is not brought to this court in the manner prescribed by law. The bill of exceptions neither contains, nor purports to contain, the evidence introduced at the trial. After specifying the material portions of the record, including the judgment of the court, it prays, that “the following documentary evidence” be approved by the judge, made a part of the record and sent up by the clerk as such, and thereupon designates certain notes, mortgages, petitions, a contract, receipt, the report of a master, and 427 a brief of tbe oral evidence wbicb had been made up at tbe bearing of a former motion for a new trial in tbis case before another judge, and wbicb, under an agreement of counsel, was also used at tbe trial now under review. It nowhere appears that these various documents were ever approved, either separately or as- a whole, as constituting a brief of tbe evidence introduced at tbe trial last mentioned. Tbe bill of exceptions sets forth, by recital and by exhibit, other evidence wbicb was introduced at tbe 'bearing. Tbe clerk’s certificate to tbe transcript of tbe record states, that no brief of tbe evidence introduced at tbe last trial has been filed in bis office, but that certain designated pages of tbe transcript contain a true copy of tbe oral evidence contained in a brief of tbe same introduced upon a former trial, and that certain other designated pages contain true copies “of the documentary evidence specified in tbe bill of exceptions' and furnished [him] by tbe attorneys for tbe plaintiff in error,” — the clerk adding, however: “But I cannot certify to such record in tbe usual form, because no brief of evidence has been approved by tbe court and filed, and I have bad to resort to such papers and documents as have been furnished me.” Further comment for tbe purpose of showing that there has been a complete disregard of the law wbicb provides bow evidence shall be brought to tbis court, is unnecessary. "We are compelled to dismiss tbe writ of error and deny tbe plaintiff in error a bearing upon tbe merits of bis case. Tbe practice to be observed in such cases has been settled by tbe decision of tins court in Mayor and Council of Waycross v. Neal, 94 Ga. 731. Writ of error dismissed.