Fairburn Banking Co. v. Citizens Bank

Jenkins, J. 1. Where, under a money-rule petition setting up equitable grounds of complaint, the issues are tried before the judge without a jury, and proof is made by affidavits and other documentary evidence, presented by each of the parties, a bill of exceptions assigning error upon the finding of the judge must incorporate such affidavits and" documentary evidence, or the same must be attached thereto as exhibits properly identified, or else be embraced in an approved brief of the. [733] evidence. Civil Code of 1910, §§ 6140, 6141; Jennison v. Jennison, 136 Ga. 202 (71 S. E. 244, Ann. Cas. 1912C, 441); Lee v. Porter, 63 Ga. 345. If only a portion of such evidence is thus presented to this court, so that it is impossible to ascertain therefrom whether the trial judge erred in rendering the judgment complained of, a judgment of affirmance must be entered. Harman v Strange, 62 Ga. 167; Masland v. Kemp, 70 Ga. 786; Chism v. Varnedoe, 96 Ga. 777 (22 S. E. 334) ; Kirby v. Lippincott, 98 Ga. 426; Williams v. Childers, 145 Ga. 91 (88 S. E. 557). But where, as in this case, under the provisions of section 6149 of the Civil Code of 1910, the defendant in error causes the omitted evidence to be sent up, and in this way all the evidence material to a clear understanding of the errors complained of is supplied, the exceptions will be considered and passed upon. Roberts v. Cairo, 133 Ga. 642, 645 (66 S. E. 938). Decided August 3, 1917. Money rule; from Fulton superior court—Judge Bell. MaTch 23, 1916. J. H. Longino, J. F. Golightly, for plaintiff in error. Moore & Pomeroy, A. 0. Broom, contra. 2. Where both the- plaintiff and the defendant in such a proceeding go to trial before the judge and present in the manner indicated their proof upon the issues made by the pleadings, and the judge, withholding judgment, directs the filing of briefs therein, a party will not be heard to raise in such brief, for the first time, the contention that he is entitled to have the issues of fact presented to a jury for determination. Pelham Mfg. Co. v. Powell, 8 Ga. App. 38 (68 S. E. 519). 3. The judgment was supported by the proof submitted, and the judge was authorized to find that the previous levy on personal property had been accounted for. Judgment affirmed. Broyles, P. J., and Bloodworth, J., concur.