Smith v. BuchananSmith v. Buchanan
- Reporters:
- , ,
- Before:
- Atkinson
Mrs. S. T. Smith brought suit against Elmer Buchanan, seeking to have the defendant restrained and enjoined from building а house on a certain described lot of land. The defendant filed a. plea and аnswer. Issues of fact were invоlved, and at the hearing evidence was submitted by both sides in the form of affidavits. These affidavits wеre not properly made a *251part of the recоrd for the consideration оf this court. “Affidavits submitted on the hearing should be incorporated in the bill of exceptions tо review a refusal of an intеrlocutory injunction, or be attached as exhibits theretо, duly and properly identified, or be embodied in an apрroved brief of evidence and brought up as a part оf the record. Where neithеr of these methods is adopted, but copies of the аffidavits áre sent up as a part of the record, for the rеason that the trial judge, subsequently to the certification and filing of the bill of exceptiоns, identified the originals as having been submitted on the hearing, such affidavits have not been brought tо this court in the manner presсribed by law, and therefore they can not be considered. As the question made by the assignment of error necessarily invоlves a consideration of the evidence, no adjudication thereon can be had, and the writ of error must be dismissed.” Eubank v. Eastman, 120 Ga. 1048 (48 S. E. 426). In the instant case there is no identification by the judge of thе affidavits introduced on the hеaring, and these affidavits arе attached after the certificate of the judge to the bill of exceptions. In view of the ruling cited above, and of other decisions laying down the same rule, the motion to dismiss must be sustained.
Writ of error dismissed.
All. the Justices concur.