Scoggins v. Knox

Hill, J. In this case the bill of exceptions recites that the judge refused to approve the brief of evidence tendered to him, passing the following order with respect thereto: “At Chambers, June 26th, 1914. This paper was this day presented to me, for approval, as a brief of the evidence; and counsel for respondent insisting that this does not contain a correct brief of the evidence of the witnesses named therein, and . further that the evidence of witnesses are left out and not named in this brief, it being presented for my approval 16 months after the trial, and by reason of the lapse of time I can not remember their evidence or the evidence of any witness, and can not approve this as correct, and I hereby disapprove this as a correct brief. This brief of evidence was accompanied by the affidavits attached of H. P. Lumpkin and P. D. Wright.” The court then passed a further order reciting that, “the movant not having an approved brief of evidence, on motion this motion for new trial is dismissed.” Two assignments of error are, “that the court erred in refusing to approve the brief of evidence presented under the circumstances in this case, as shown by the affidavits attached to the brief of evidence;” and that the court “erred in refusing to allow time to get the stenographer’s report, as requested by movant’s counsel, as shown by the affidavit of Paul D. Wright, attached to brief of evidence tendered in this case.” The brief of evidence and the affidavits referred to were specified as a part of the record and brought to this court as such. Held: (a) The brief of evidence not having been approved and filed as a part of the record, neither it nor the affidavits accompanying it could legally be brought to this court as part of the record, and the assignments of error quoted above can not be considered. (6) There being no approved brief of evidence before the court, the court did not err in sustaining the motion to dismiss the motion for a new trial. Judgment affirmed. All the Justices concur.