157 Ga. 570 | Ga. | 1924
On April 16, 1923, the defendant in error filed a motion to correct the transcript of the record of file in this court. The motion is as follows: “And now comes the defendant in error, the Bank of College Park, and suggests a diminution, imperfection, and incorrectness of the record in said case, as appears from the transcript of file in this court, and moves the court to have same corrected and perfected so as to correspond with the record below, on the following grounds, to wit: 1. Because no brief of the evidence introduced on the hearing before the judge in the lower court, was ever approved by the said judge or ordered filed; nor has any such brief been filed as required by law in the clerk’s office of the superior court of Campbell County, so as to become a part of the record in said case; and the transcript as certified by the clerk below, and now filed in this court, is not a correct Representation of the records in-the case of file in the lower court. 2. Said defendant in error alleges, on information and belief, that said transcript is incorrect, in that it contains a transcript of an alleged brief of the evidence introduced on the trial below, when as a matter of fact no brief of evidence has ever been approved by the court or judge below, nor filed in the clerk’s office of the superior court as required by law, and said transcript should be perfected by eliminating or expunging from said transcript of record said alleged brief of evidence. 3. Counsel for defendant in error shows to the court, that a paper purporting to be a brief of the evidence in said case was presented to him by counsel for plaintiffs in error on Jan. 30th, 1923, for an agreement, and left with defendant’s counsel, and he in a short time afterwards signed an agreement on said alleged brief of evidence, and so informed plaintiff’s counsel; but said defendant in error, on information and belief, alleges that plaintiff’s counsel never called for same, and that the same remained in the office of defendant in error’s counsel until after said transcript was
It will be s.een that this petition does not comply with the provisions of § 6149 of the Civil Code, which require the grant of an order by the judge of the superior court transmitting what is desired to the Supreme Court, within twenty days of the date of the service of the bill of exceptions. Paragraph one of this section is as follows: “1. If the defendant in error in either the main or cross-bill of exceptions shall desire more of the evidence or other parts of the record, or all of the evidence, or all of the record sent up, he shall, within twenty days after the bill of exceptions is served on the defendant or his attorney, petition the judge who signed the same to order the whole or any part of the record sent up by the clerk; and the judge shall order the same certified accordingly and sent up. And if from the main or cross-bill of exceptions, in any ease in which no brief of evidence is made and filed as a part of the record, there is omitted any material evidence, and the judge trying the case has inadvertently certified said bill of exceptions as true, then, within twenty days from the date of service of the bill of exceptions, the trial judge may, on his
In Jackson v. Ga. So. & Fla. Ry. Co., 132 Ga. 127, 135 (63 S. E. 841), the bill of exceptions tendered by the plaintiff was signed on December 17, 1907, and was filed in the office of the clerk of this court on December 27, 1907. On January 2, 1908, a petition was presented to the judge, which alleged that almost thirty days after the grant of the nonsuit one of the plaintiff’s counsel tendered the brief of evidence contained in the record which had been certified by the trial judge; that such brief had not been made from the stenographic report of the official stenographer, although the case was reported by him, but was made up entirely from the memory of the attorney; that it was not a correct brief of the evidence adduced at the trial of the case, but was inadvertently certified by the j udge as true; that no separate brief of the evidence was filed; that the defendant had procured from the official stenographer a transcript of the evidence adduced at the trial, and had made a brief thereof which was presented with the brief for approval, that it was practically impossible to present only a supplement to
The motion of the defendant in error cannot be granted upon the grounds insisted upon, because, as stated above, the application was not addressed to the superior court, nor was it made within twenty days after the service of the original bill of exceptions. For also another reason the motion is insufficient to dismiss the bill of exceptions. The motion is based entirely upon the statement that in fact no approved brief of evidence was ever filed, and that therefore it should not have been included in the transcript of the record; and the effect of this statement of fact is to impeach the certificate of the clerk to the transcript of record, by showing that there was never in fact any brief of the evidence. This court 'has uniformly held that it would not go behind the certificate of the clerk to the transcript of the record to determine the correctness or verity of statements aliunde the record, which conflict with the certificate of the clerk. Minhinnett v. State, 106 Ga. 141 (32 S. E. 19); Clark v. State, 110 Ga. 911 (36 S. E. 297); Coart v. State, 156 Ga. 536 (119 S. E. 723), and citations. So we consider the case upon its merits.
Judgment affirmed.