Rooks v. White

Russell, Judge. The bill of exceptions assigning error on the judgment of the trial court sustaining the defendants’ motion for summary judgment recites that at the hearing on said motion “defendants introduced testimony and records of the Workmen’s Compensation Board of the State of Georgia which were considered by the court.” It further specifies as material to a clear understanding of the errors complained of a copy of the record of the proceedings before the Workmen’s Compensation Board and copy of a designated petition filed by the plaintiff in the Superior Court of Fulton County. The record certified by the Clerk of the Superior Court of DeKalb County and attached to the bill of exceptions fails to include this documentary evidence, but on the contrary recites that it does not appear as a part of the record in the case in the trial court. Further, the certificate of the trial court recites that the bill of exceptions specifies all material necessary to a clear understanding of the errors complained of “except a brief of the evidence introduced at the hearing on motion for summary judgment on July 2, 1962.” It thus affirmatively appears that evidence was introduced at the hearing resulting [85] in the judgment complained of; that such evidence is not in the record before this court, and that it was considered both by the trial judge and the plaintiff in error to be material to a consideration of the errors complained of. It follows that in the absence of a brief of evidence this court cannot reach any decision on the merits of the appeal. Decided November 29, 1962. George F. Wheeler, Jr., William M. Redman, Jr., for plaintiff in error. Glenn Frick, Lokey & Bowden, Hamilton Lokey, contra. When the error assigned cannot be determined without a consideration of evidence, and the bill of exceptions neither contains nor specifies a brief of evidence as a part of the record in the case, the proper judgment is not a dismissal of the writ of error but an affirmance of the judgment of the trial court. Code Ann. § 70-301.1; Whitner v. Whitner, 207 Ga. 97, 100 (60 SE2d 464); Pierce v. Felts, 146 Ga. 716 (92 SE 212); White v. Hornsby, 191 Ga. 462 (2) (12 SE2d 875); Walker v. Hamilton, 209 Ga. 735, 738 (76 SE2d 12); Lewis & Matthews v. Sams & Son, 22 Ga. App. 222 (95 SE 764). Judgment affirmed. Carlisle, P. J., and Eberhardt, J., concur.