Darden v. McCord

51 S.E.2d 666 | Ga. | 1949

1. Whether a brief of evidence is a proper brief is a question to be determined primarily by the trial judge; and when the judge refuses to approve a brief of evidence, upon the ground that certain documentary evidence was not set out with sufficient description and that the contents of the documentary evidence, which was pertinent to the issue in said matter, were omitted, this court will not reverse a judgment dismissing the motion for new trial on account of the failure to present a proper brief of the evidence as required by law, unless it can be made to appear that the omitted evidence was immaterial. Norred v. State, 127 Ga. 347 (1) (56 S.E. 464).

2. In the present case, as in Norred v. State, supra, the documentary evidence claimed to have been omitted does not appear in the record or bill of exceptions, and it can not be determined by this court that the trial judge erroneously held such evidence to be material.

3. The present case is distinguished by its facts from Cannon v. Gaines, 199 Ga. 277 (34 S.E.2d 103), wherein it was held that the judge erred in entering a final order disapproving the brief of evidence and denying a new trial, without first allowing the movant reasonable opportunity to correct whatever errors were in the brief of evidence as tendered for approval.

Judgment affirmed. All the Justices concur.

No. 16511. FEBRUARY 14, 1949. Frances McCord and fourteen other persons filed in Troup Superior Court, against H. C. Darden, individually, and Henry Reeves, as administrator of the estate of Milas McCord, an equitable petition seeking cancellation of a deed. At the conclusion of the evidence, the court directed a verdict in favor of the petitioners. The defendant Darden filed a motion for new trial on general grounds, and a rule nisi was granted, returnable February 28, 1947. The order contained a provision that, if the motion was not heard before the beginning of the next term of court, then the same should stand on the docket until heard. The motion was not heard on February 28, but at several succeeding terms the defendant Darden tendered to the trial judge a brief of evidence and his amended motion for new trial. The defendants in error, who were plaintiffs in the trial court, filed a series of objections and motions to dismiss the motion for new trial on the ground among others that certain documentary evidence was not set out with sufficient description, and that the contents of the documentary evidence, which was pertinent to the issue in said matter, were omitted, and that, in the manner set out in the brief of evidence, the same was insufficient. On November 8, 1948, the trial judge passed an order sustaining each of the plaintiffs' motions, and dismissed the defendant Darden's motion for a new trial. The exception is to this judgment. The bill of exceptions recites that the presiding judge erred in dismissing the motion for new trial because the brief of evidence was not complete, and insists that the brief of evidence was complete and contained a brief of all the testimony. It was not contended that the defendant was not allowed a reasonable opportunity to correct the brief of evidence.