49 Ga. App. 91 | Ga. Ct. App. | 1934
Lead Opinion
Where it is sought to bring to. this court the evidence introduced upon a trial, without incorporating the evidence in the bill of exceptions, and the bill of exceptions recites that a number of witnesses “testified in behalf of the plaintiff in error, as is shown by a brief of
Writ of error dismissed.
Concurrence Opinion
concurring specially. It does not affirmatively appear that the brief of evidence in this case, which was specified in the bill of exceptions was tendered to the judge and filed in office at the time of the tendering of the bill of exceptions; and under the rule laid down in the case of Days v. Atlanta &c. Ry. Co., 101 Ga. 785 (supra), a brief of evidence presented after the time for tendering a bill of exceptions will not be considered by a reviewing court. A nonsuit was granted May 30th; on June 27th following the bill of exceptions was tendered and there was specified therein as material to a clear understanding of the errors complained of “a brief of the evidence as approved by the court in said case.” This bill of exceptions was held by the judge until August 22, at which time' it was certified and this note attached to the certificate: “I further certify that at the time this bill of exceptions was tendered, there was no brief of evidence approved or allowed and same was not approved until several days thereafter,” to wit, July 15. If the brief of evidence had been tendered with the bill of exceptions, the mere failure of the judge to approve such brief, when the bill of exceptions itself is held until a later date, will not subject the bill to dismissal in this court where the delay is not occasioned by the movant. A brief not tendered is a brief not made, and one made after the expiration of the time for tendering the bill of exceptions subjects the case to a dismissal in this court.