State Highway Department v. Attaway

Nichols, Judge. 1. “In a case involving questions of law and fact, tried by a judge without the intervention of a jury, where no motion for new trial is made, and a bill of exceptions is sued out assigning error upon the judgment rendered by the trial judge, the evidence should be embodied in the bill of exceptions, or attached as an exhibit thereto and properly identified by the trial judge, or contained in a brief of the evidence approved by him and made a part of the record. Robinson v. Woodward, 134 Ga. 777 (68 S. E. 553); Scott v. Wage Earners Loan &c. Co., 147 Ga. 576 (94 S. E. 1021); Leggett v. Pridgen, 150 Ga. 115 (102 S. E. 829). See also Glover v. State, 128 Ga. 1 (57 S. E. 101); Blackman v. Garrett, 135 Ga. 226 (69 S. E. 110); Silvey v. Brown, 137 Ga. 104 (72 S. E. 907); Town of Fairburn v. Edmondson, 160 Ga. 792 (129 S. E. 108). In the transcript sent up by the clerk as record, a paper which purports to be a copy of an agreed statement of facts can not be considered as record, the same not having been approved by the trial judge and made a part of the record, where it only appears [141] that such agreed statement was signed by counsel and filed in the office of the clerk. Robinson v. Woodward, and Scott v. Wage Earners Loan &c. Co., supra.” Federal Investment Co. v. Ewing, 165 Ga. 435 (1) (141 S. E. 65). Decided February 11, 1958. Eugene Cook, Attorney-General, Paul Miller, E. J. Summerour, Lamar L. Murdaugh, Assistant Attorneys-General, for plaintiff in error. Cohen Anderson, contra. 2. “Where a case is submitted to the trial judge to pass upon all questions of law and fact without the intervention of a jury, and he renders judgment in favor of the plaintiff, this court will presume, in the absence of the evidence introduced before the judge and upon which he acted in rendering judgment, that he had before him ample evidence to support his judgment, and that therefore the judgment is not contrary to law or the evidence.” Federal Investment Co. v. Ewing, supra, headnote 2. See also, Willcox v. Cobb, 58 Ga. App. 39 (197 S. E. 517); and Dean v. Ross, 62 Ga. App. 60 (7 S. E. 2d 411). 3. Applying the above law to the facts in the present case where the action brought by J. G. Attaway, trading as J. G. Attaway Construction Company, against the State Highway Department of Georgia was tried by the trial court without the intervention of a jury on an agreed statement of facts and a judgment entered for the plaintiff, to which judgment the plaintiff in error excepts, and no evidence or agreed statement of facts was embodied in, or attached as an exhibit to, the bill of exceptions, and there is embodied in the transcript sent to this court by the clerk of the trial court a purported “agreed statement of facts” which has merely been signed by counsel but not approved by the trial court, it is presumed that the trial judge had before him ample evidence to support his judgment, and the judgment of the trial court must be affirmed. Judgment affirmed. Felton, C.J., and Quillian, J., concur.