Secured Insurance v. Whitley Construction

Felton, Chief Judge. “When no motion for a new trial is made, the evidence should be embodied in the bill of exceptions, or attached as an exhibit thereto, and properly identified, or contained in a brief approved by the trial judge and made part of the record. In a suit on an insurance policy, where the case is tried on an agreed statement of facts, and a judgment in favor of the defendant is rendered by the court, and the exception is to this judgment, the embodiment in the record of what purports to be a copy of the agreement signed by counsel is not sufficient. Mann v. Archer, 69 Ga. 767.” McClarty v. Penn Mutual Life Ins. Co., 131 Ga. 724 (1) (63 SE 224). “An alleged statement of facts not being set forth in the bill of exceptions nor made a part of the same as an exhibit thereto and properly authenticated, what purports to be an agreed statement of facts sent up as a part of the record, but not approved by the judge and ordered filed as such, can not be considered by this court [cases cited].” Silvey & Co. v. Brown, 137 Ga. 104 (1) (72 SE 907). See also cases annotated under Code Ann. § 6-801, catchword, “Evidence,” sub catch phrase, “Documentary evidence and affidavits,” etc., and cases annotated under Code Ann. § 6-802, catchwords, “Agreed statement of facts.” In the present case, although the two documents of evidence before the trial court—the alleged stipulation of facts and copy [431] of the insurance contract sued on—were specified in the bill of exceptions as being a part of the record material to a clear understanding of the errors complained of and filed with the clerk of the superior court and physically attached to the record following the judge’s certificate, they were nevertheless not before this court in the manner directed by law. As indicated by the authorities hereinabove cited, there are three methods by which evidence can be properly brought before our appellate courts, namely: (1) by procuring on the document or documents the trial judge’s approval as part of the record and his order that it be filed as such; (2) by incorporating the evidence in the bill of exceptions, preceding the certificate of the judge; or (3) by attaching it as an exhibit or exhibits to the bill of exceptions, bearing thereon the judge’s authentication of them as some of the parts of the record certified to by him as being the document or documents specified in the bill of exceptions and certified to in his certificate. In this case the stipulation is not before this court under any of the above methods. Decided February 4, 1965 Rehearing denied March 30, 1965. Peek, Whaley & Blackburn, J. Corbett Peek, Glenville Haldi, for plaintiff in error. Zachary & Hunter, W. E. Zachary, John C. Hunter, contra. The errors assigned in the defendant’s bill of exceptions being such as can not be determined from the record without a consideration of the alleged documentary evidence so sent up, the judgment of the court below in favor of the plaintiff must be affirmed. See Silvey & Co. v. Brown, 137 Ga. 104 (2), supra; Stewart v. Echols County, 89 Ga. App. 99 (78 SE2d 867; Whitney v. Birdsong, 216 Ga. 756 (119 SE2d 569) and cases cited. Judgment affirmed. Jordan and Bussell, JJ., concur.