| Ga. | Jul 13, 1910
The bill of exceptions recites that upon the trial of a statutory complaint for land tlie trial judge, upon an agreed .statement of facts in writing signed by counsel for both parties, decided that the title to the lands sued for was in the defendant and that the plaintiff do not recover same, to which judgment exceptions were had. Tlie bill of exceptions contained an agreed statement of facts, wherein it was stated “that defendant claims said lots of land solely as such heir at law, and from no other source whatsoever; and that plaintiff claims said lots of land solely by reason of the instrument hereto attached:’ and that unlc-.s said instrument divested said Ashley O. Best of title, the ownership and title of said lots is in defendant.” The bill of exceptions specified as a part of the record material to a clear understanding of the errors complained of, among other things, the agreed statement of facts and the instrument therein referred to. Neither a copy, nor any of the contents, of the instrument referred to was embodied in the bill of exceptions, or attached as an exhibit thereto,' or contained in a brief approved by the trial judge and made a- part- of the record. In the transcript sent up by the clerk as the record, there appears what purports to be a copy of such instrument, and there appears what purporis to be a copy of the agreed statement of facts signed by counsel for both parties and filed in the clerk’s office, with what purports to be a copy of the instrument therein referred to as annexed thereto. Held:
1. Where, no motion for a new trial is made, the evidence should be embodied in the bill of exceptions, or attached as an exhibit thereto and properly identified by the trial judge, or contained in a brief of the evidence approved by nim and made a part of the record. MecClarky v. Penn Mutual Life Ins. Co., 131 Ga. 724 (63 S.E. 224" court="Ga. Ct. App." date_filed="1908-12-22" href="https://app.midpage.ai/document/barco-v-taylor-5603380?utm_source=webapp" opinion_id="5603380">63 S. E. 224); Roberts v. Cairo, 133 Ga. 642 (66 S.E. 938" court="Ga." date_filed="1909-12-24" href="https://app.midpage.ai/document/roberts-v-city-of-cairo-5577006?utm_source=webapp" opinion_id="5577006">66 S. E. 938).
2. In the transcript sent up by the clerk as being record those papers which purport to be copies of the agreement of counsel and of the instrument annexed thereto can not be considered as record, not being approved by the trial judge and made a part of tlio record, it only appearing that such agreed statement of facts was signed by counsel and filed in the office of the clerk; and only the agreement of counsel as appearing in the. bill of exceptions with a mere reference to such instrument can be considered. Dolvin v. American Harrow Co., 134 Ga. 113 (67 S.E. 541" court="Ga." date_filed="1910-02-22" href="https://app.midpage.ai/document/frierson-v-fincher-5577124?utm_source=webapp" opinion_id="5577124">67 S. E. 541).
(a) A construction of the instrument above, referred to being necessary for the determination of the only question involved in the case, this court is unable to review the correctness of the final judgment upon the merits, and an affirmance of the judgment of the court below must necessarily result. Cases cited supra.
3. Several months after the bill of exceptions was certified and filed in this court, there was signed by the trial judge, and sent to this eouri bv the clerk of the trial" court under his certificate and seal, a second certificate of the trial judge, in which the latter stated that the pages annexed thereto “comprise a complete, true, and correct copy of - the agreed statement of facts, and of the original deed referred to therein, exhibited
(a) As neither the copy nor any of the contents of the instrument can be considered as any part of the record, the bill of exceptions can not, under the provisions of Civil Code, § 5570, be amended so as to include such copy, or any part of such contents.
Judgment affirmed.