Appellant and appellee are brother and sister. Appellant filed a caveat to the will of their deceased brother which appellee, as executrix, had offered for probate. The will was probated in solemn form, and appellant appealed to the superior court for de novo review pursuant to Code Ann. §§ 6-201 and 6-501. The superior court granted appellee’s motion for summary judgment based on the probate court record. Appellant appeals contending that summary judgment in favor of appellee was erroneous. We affirm.
Generally, the same procedural rules apply in a de novo review as in any other civil case before the trial court. See
Woodall v. First Nat. Bank,
Whilé, at trial, the party moving for summary judgment has the burden of establishing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law, it is well settled that, on appeal, the burden is on the appellant to establish error. See, e.g.,
Tanis v. Tanis,
In the instant case, the transcript of the probate court proceedings is essential to making the above determinations. Appellant, however, chose to omit this transcript from the record on appeal. Since appellant has failed to meet his burden of showing error, the judgment of the trial court must be affirmed.
Our position is bolstered by Code Ann. § 6-805 (c), which provides in pertinent part: “[W]here an appeal [is] taken which
draws in question
the transcript of the evidence and proceedings, it
shall
be the duty of the appellant to have the transcript prepared at his expense .. .’
1
Thus, where the transcript is necessary for review and appellant omits it from the record on appeal, the appellate court must assume the judgment below was correct and affirm. See
McAllister v. City of Jonesboro,
Code Ann. § 6-809 (b) does not, in our view, lead to a different result. The statute is concerned with dismissals of appeals. Code Ann. § 6-809 (b) does not prohibit an affirmance on the ground that the appellant failed to present the appellate court with a record sufficient
*465
to enable it to determine whether the trial court has committed reversible error. See
Aviation Electronics, Inc. v. U. S. Energy Conservation Systems,
Judgment affirmed.
Notes
“If the appellant designates any matter to be omitted from the record on appeal as hereinbefore provided, the appellee may, within 15 days of serving of the notice of appeal by appellant, file designation of record designating that all or part of the omitted matters be included in the record on appeal..(Emphasis supplied.) Code Ann. § 6-806. However, appellee is not required to do so.