Bond v. Winn

113 Ga. 18 | Ga. | 1901

Lewis, J.

The bill of exceptions in this case, after reciting the names of the parties and the trial in the court below, states “that plaintiffs introduced their evidence hereinafter specified, and closed.” Then follow, in consecutive paragraphs, allegations as to certain testimony offered in behalf of the plaintiffs, which the court refused to admit, with assignments of error upon these rulings. In like manner exception is taken to rulings of the court on the admission of certain testimony, oral and documentary, in behalf of the defendant. No attempt is made to include in the bill of exceptions a brief of the evidence offered on the trial, or to have an approved brief sent to this court as a part of the record. The judge’s certificate is not a complete verification of the recitals of fact in the bill of exceptions, but contains a qualification as to certain allegations therein made. The record sent to this court by the clerk below embraces the pleadings in the case; what appear to be literal copies of certain documents which were presumably introduced in evidence; a report of the oral evidence, certified as such by the official stenographer of the circuit, most of which is in the original dialogue form, with no attempt at consecutive' narration; and copies of several interrogatories sued out in the case. Immediately following the stenographer’s certificate to the oral evidence, and sandwiched between it and papers which purport to be a portion of the documentary evidence, is a certificate by the judge of the superior court that “ this brief is hereby approved as a true and correct brief of the evidence adduced upon the trial of the case . . therein referred to.” Where this “brief” begins, where it ends, and of what it consists is left to conjecture. In this shape the case is before us for determination.

1, 2. We are, in view of what'is set forth above, at some loss to account for the statement in the certificate of the trial judge that the bill of exceptions “contains all of the evidence . . material to a clear understanding of the errors complained of.” As a matter of fact, it contains none of the evidence except fragmentary portions to which allusion is made in assigning error upon certain rulings of the court. The simple assertion that the plaintiff or the defendant “introduced evidence hereinafter specified, and closed,”' unaccompanied by any attempt to incorporate the evidence other than as noted, certainly is not conclusive of what evidence was introduced on the trial. We can not, therefore, treat the bill of exceptions in the present case as containing the evidence material to a clear understanding of what occurred on the trial below.

3. No reference is made in the bill of exceptions to a brief of the evidence, nor is there any prayer that such a brief be sent up to this court. - Certain documents and the oral evidence of certain witnesses are mentioned as “parts of the record,” and specified as. material to a clear understanding of the errors complained of. “ The mere introduction of documents in evidence on the trial of a given case does not render them portions of the record thereof, and such documents, unless duly made a part of the record in that case hy incorporation in an approved brief of evidence, can not properly be specified and brought to this court in a transcript of such record.” Braswell v. Brown, 112 Ga. 740. The language quoted, we think, is controlling. But even if the bill of exceptions had duly specified a brief of the evidence (which counsel sought to do by amendment to the bill of exceptions), such an attempted verification by the trial judge as was made of the alleged brief in the present case would be a fatal defect which would prevent its consideration by this court.

4. The assignments of error in the bill of exceptions can not be intelligently passed upon without reference to the evidence which was introduced on the trial. The evidence, as has been shown, is not properly before us. It follows, therefore, that nothing is presented for our determination. See Ryan v. Kingsbery, 88 Ga. 361; Harris v. McArthur, 90 Ga. 216; Farmers Alliance Exchange v. Crown Cotton Mills, 91 Ga. 178; Cash v. Lowry, 91 Ga. 197; Ingram v. Clarke, 96 Ga. 777; Southern Mining Co. v. Brown, 107 Ga. 261; Carmichael v. State, 111 Ga. 653, and many .other cases which might be cited to the same effect.

5, 6. As already set forth, there was no complete verification by the court below of the recitals of fact in the bill of exceptions. The judge, on the contrary, certifies that a portion of the bill is not true. “Where the judge’s certificate to a bill of exceptions verifies it in part only, and shows it to be in part untrue, the certificate is not a lawful one, and the writ of error must be dismissed.” Hawkins v. Americus, 102 Ga. 786. See also Case v. Brotherton, 105 Ga. 510; Fort v. Sheffield, 108 Ga. 781; Sanges v. State, 110 Ga. 260. For this reason, and because, as already shown, the bill of exceptions contains no sufficient assignment of error, the writ of error must be Dismissed.

All the Justices concurring.