7 Ga. 258 | Ga. | 1849
By the Court. —
delivering the opinion.
The Court below is presumed to decide correctly until the reverse is shown; and to make it error to admit or exclude testimony, the bill of exceptions must show its relevancy and materiality, and the injury done to the party complaining by the decision thereon. Tested by these rules, we find this record fatally
Again, it is alleged that the Court erred in refusing to allow the defendants to prove the improper and corrupt conduct of one of the. commissioners who acted in taking interrogatories for the plaintiff,, not offered in evidence, in order to discredit and reject other interrogatories read to the Jury, and taken by the same commissioner.
The difficulty here is, that the record does not disclose what the evidence was, which is charged to have been thus illegally admit, ted. And where a witness is asked an improper question, and the objection to it being overruled, it is answered, and the record does not show what the answer is, and that it is prejudicial to the objector, the judgment will not be reversed. King vs. Mimms, 7 Dana, 26.
These authorities, as well as the reason of the thing, show, conclusively, the necessity of stating, in the bill of exceptions, the substance of the testimony which is alleged to have been improperly allowed, in order that the appellate Court may decide intelligibly in the matter or thing complained of.
• As to the 6th exception, that the Court erred in maintaining that the Central Bank of Georgia had the right to release Thomas J. Warthen, who was second indorser of P. P. Bethea, on the note discounted in said bank, from all liability on said paper, and that said discharge did not affect the competency or credibility of the testimony of the witness, the same remarks apply which were made to the second exception. It does not appear what the testimony of this witness was — whether it was material or otherwise — whether it was prejudicial to the defendant or not.
We have assumed, throughout this opinion, that the testimony appended to the record constituted no part of the bill of exceptions, and consequently is not before us. The bill of exceptions was certified and signed on the 28th of March, 1849. Notice was given thereof, as required by the Act, on the 2d of April ensuing; and on the 11th of April, the papers were filed in the Clerk’s office, and on the same day, a brief of the testimony was examined and allowed by the Judge, and also filed in office. The opposite party had no notice of the testimony, which was annexed nine days after notice was served of the signing of the bill of exceptions. Of course'it must be rejected.
If parties, then, have an interest to correct any errors in the judgments of the Circuit Courts, they can place themselves in a condition to have them examined, by pursuing the course we have indicated; but there being nothing in this transcript to warrant the writ of error, as it now is, and as it cannot be amended or supplied, the writ of error must be dismissed.