Hall v. Faulk

Head, Presiding Justice. The bill of exceptions recites that grounds 1 -and 2 of the amended motion for a new trial “were approved and ordered filed, and the motion for new trial, as amended, was overruled on each and all the grounds therein stated,” and it is asserted that the case thus illegally terminated. The order of the court on the amended motion for new trial, specified in-the bill of exceptions, recites: “No approved brief of evidence having been filed, and the brief of evidence tendered having been disapproved, on motion of counsel for respondents, the within and foregoing motion for new trial as amended is hereby dismissed.” Held: The present case is controlled by the ruling in Sistrunk v. Love, 139 Ga. 240 (77 SE 21), as follows: “The only assignment of error in the bill of exceptions is upon the overruling of the motion for new trial. It appears from the record that the merits of the motion for new trial were not considered by the trial judge, but that the motion, at the instance of the respondents thereto, was dismissed upon the ground that no brief of the evidence had been tendered or filed at the time of [423] the hearing of the motion. The recital in the bill of exceptions that the motion for a new trial was overruled must yield to the record, which affirmatively shows that no such judgment was rendered ... As no ruling made or judgment rendered by the trial court is brought under review by the writ of error, the motion made by defendants to dismiss the same must be sustained.” Argued October 14, 1963 Decided November 7, 1963. Robert Herndon, for plaintiff in error. Gordon Knox, Jr., Leon A. Wilson, II, contra. Writ of error dismissed. All the Justices concur.