11 S.E.2d 774 | Ga. | 1940
The burden being upon the plaintiff in error to show not only error but injury, a judgment dismissing, on oral motion, a petition for mandamus will not be reversed when the petition is neither specified as a part of the record, nor incorporated in the bill of exceptions, nor substantially set forth therein, although in entering the order of dismissal the judge may have given an insufficient reason for his ruling.
We do not wish it to be understood that anything said above is an expression of opinion on our part that the judge was wrong, or gave an incorrect reason for his ruling. How can it be determined *106 whether or not the trial court should be overruled for dismissing the petition on oral motion, unless we look to the petition itself? On application of the authorities heretofore cited, the burden is on the plaintiff in error to make it affirmatively appear that the court by its ruling not only committed error but deprived him of some substantial right to which he was entitled, thereby showing injury. If the petition showed on its face no right to invoke the writ, the plaintiff was not in a legal sense injured by its dismissal. Whether we have the right, under the Code, § 6-810(4), to order the clerk of the court below to send to this court a copy of the petition, when none of the record was specified in the bill of exceptions, we must decline to do so in the instant case. Twice in the brief of the defendant is the suggestion that this court might wish to send for the record. In a reply brief filed by plaintiff is what we construe to be an argument against our sending for the record. We find it unnecessary to decide whether or not the judge was correct in the view that the petition had to be verified, and we affirm the judgment for the reason that plaintiff has not carried the burden of making it affirmatively appear that the court erred in dismissing the petition.
Judgment affirmed. All the Justices concur, except Atkinson,P. J., disqualified.