Julian v. Baker

Luke, J. 1. The court did not err in overruling the demurrers to the defendants’ answers. 2. The bill of exceptions in this case was certified on March 6, 1923. The evidence is not embodied in the bill of exceptions or specified as a part of the record. The writ of error was received and filed in the Court of Appeals on March 30, 1923. On May 28, 1923, a brief of evidence was filed in the office of the-clerk of the trial court, and was by him transmitted to the Court of Appeals. It appears that this brief of evidence was not approved until May 28, 1923. The brief of evidence cannot be considered by this court. The trial judge was without authority to approve the brief of evidence after the bill of exceptions had been certified. Simpson v. Simpson, 138 Ga. 204 (75 S. E. 98); Boatright v. Boatright, 150 Ga. 68 (102 S. E. 424). Nor will an agreement by counsel that the brief of evidence be filed and made a part of the record alter the above rule. Board of Education v. Day, 128 Ga. 156 (1) (57 S. E. 359). And as the exception to the action of the trial judge in directing a verdict for the defendants is dependent for a determination upon the brief of evidence, the judgment of the court below must be affirmed. Judgment affirmed. Broyles, C. J., and Bloodworth, J., concur.