Collins v. Garland

Nichols, Justice. This appeal arises from a judgment probating a will in the superior court after an appeal had been filed by the caveators from an adverse judgment in the court of ordinary. The enumerations of error assert that the verdict in the superior court is contrary to the evidence, etc., and that the trial court erred in rendering judgment for the propounders "for the reason that the court continued the case and took it off the trial calendar as is shown by the affidavits of Mrs. Ann C. Bond, Mr. L. J. Collins, and Mrs. Willie Blanche Berry.” The record in this court shows a judgment of the trial court refusing to grant a continuance upon the call of the case based upon a letter written to the clerk of court by one of the caveators asking to be excused from appearing in response to a subpoena issued requiring her presence as a witness for the applicants, but does not disclose that any motion for a continuance was made or passed upon by the trial court, or any affidavits of the persons named in the enumeration of error. No transcript of the evidence on which the jury verdict for the propounders was based appears in the record, and the notice of appeal does not disclose any intention of the appellants to file such transcript for inclusion in the record transmitted to this court. Held: Since there is no transcript of the evidence adduced upon the trial before this court and the remaining enumeration of error alleges facts not supported by the record, there is no question presented for consideration by this court, and the judgment of the trial court must be affirmed. Compare Meltzer v. C. Buck LeCraw & Co., 225 Ga. 91 (166 SE2d 88) and citations. Judgment affirmed. All the Justices concur.