*1 354 charter, of its municipal powers broad

by virtue village or as was city, contemplated town such 2 of the Electric legislature enacting Membership Act. Corporation follows, therefore, that Troup Membership Electric

7. rights to electric- has non-exclusive furnish Corporation Columbus, Georgia, to its in that ity portion members outside limits Muscogee County, lying and existed on December City former Columbus 1970, 31, and cannot be restricted in the extension its question lines in the area in this case because such are not now included within the limits of incor- lines city, village town or those porated unincorporated (8) of the terms are used in Electric Membership §2 (8). Act. Code Ann. Corporation §34B-102 rendering appealed and order erred from.

Judgment reversed. March 1972. Troup Judge Knight. Court. Before Injunction. Tisinger, for Tisinger Tisinger, appellant. Richard G. Henson, Kelly, Champion Forrest Birdsong, Richter Jr., Champion, appellee. Brim, Jr., Robinson, C. Donald Lennie F. James T. Jr., Polleys, curiae. E. H. amicus GASAWAY et al. 27268. FROST v. following is from the appeal Justice. This Undercofler, foregoing of the trial court: "The within coming plaintiff’s and to heard on regularly and it summary judgment being motion for all the court consider defen- counsel Administrator Daniel F. Gasaway ses defendants of Veterans Affairs of state a claim and res judicata, and the parties having stipulated certain evi- defenses, dence these hearing argument after counsel, evidence, parties and considered ordered and adjudged as follows: 1. The first and third defenses of defendants *2 Administrator of Veterans Affairs are sustained . . Held: trial judgment court’s showed he considered "the

stipulation of the parties the evidence.” Therefore the motion to dismiss for state a claim was converted into motion for summary judgment. Code (b) (Ga. 609, 622; 1967, 231). The record does not contain the the evidence. This court is unable to re- ruling view the motion for summary judgment since we do not have before us the facts con- which were by Smith, sidered the trial court. Smith v. 223 Ga. 795 (158 679); Herring Herring, SE2d In a supplemental brief filed in this court the appellant

contends that he requested the trial court clerk to for- ward to this all of the record and the depositons the witnesses. Attached to his brief is a of a copy letter from seeking court clerk direction whether certain "sealed” should be depositions forwarded A court. from copy letter the trial court to the clerk states that counsel for the "made a state- ment of fact to the court and counsel for each of the other made brief statements all there no dispute the facts and the court based its decision state- I, therefore, by ment counsel. presented respect- fully request part be made the record were not considered the court when it made its decisions.”

Judgment Hawes, J., con- affirmed. specially. curs 28, June 27, 1972. Merrill, Carlton, Charles B. Carlton, Milton A.

Spivey & Jr., for appellant. Chilivis, Nicho- Erwin, Gibson Darsey, Epting, A.

John Davidson, Heyman Davis Chilivis, H. W. las P. & Constan- Richardson, Chenggis Sizemore, Greer, DanW. Constantinides, for tinides, appellees. Platon P. in the I concur Justice, concurring specially.

Hawes, because, as noted solely in this case of affirmance to this record as transmitted majority opinion, to determine whether to enable us court is insufficient However, the or not. court is correct of the trial that Mrs. Frost held reveal from pleadings record does a remote debt executed a deed to secure in October of was executed That deed which defendants. recorded the office duly properly 1958 was *3 February In County. of Jackson of the Court Clerk on the face of that deed was entered 1964, a cancellation of maker of the Thereafter, in of the record, deed to a Mrs. warranty a to secure debt executed deed the who, conveyed property in of September Wilson On the same Gasaway. the deed to defendant by warranty to the Veterans date, property transferred the shows for a loan. record security Administration as deed to security original after the cancellation of the that record, the debtor continued entered on the Mrs. Frost was on the deed up of interest due annual instalments pay to he had the death, conveyed prop- and even after until his that the to be beyond dispute to Mrs. seems erty Wilson. Mrs. Frost deed to security on the record cancellation that the appear It does not a fraudulent cancellation. was light throw on court is able to clerk of the superior the recordation authority matter what respecting the the deed canceled. of was I deem to be a hiatus what point up circumstances

These most attorneys aware, the law. As are is the practicing custom the clerks of the courts of this to superior State enter cancellation deeds to secure debt on the record most informal merely upon the sort evidence furnished to them satisfaction of showing the indebtedness. It is fre- as most have done quently practice, certainly must to enter such cancellations upon presenta- a tion of mere letter or memorandum apparently signed by

the holder of such instrument and without that requiring itself be instrument delivered to the clerk up before cancellation of the I sure, same the record. To be am that aware this is not a practice. universal Some clerks require entry the satisfaction on the deed made with the same formality with which the deed itself executed; is, with the attestations of two witness- es, one whom must be notary. even that would not seem satisfy requirement implicit which is in Code 67-1301 that payment of indebted- an ness secured deed absolute therein shall reconveyed right have the to have the to him. A property reconveyance can only be the execution accomplished by deed, delivery mere the deed to entry secure debt of a notation that the indebtedness has been and satisfied to fall far fully paid would seem short of ac- complishing reconveyance. any rate,

At me it seems to this is a matter which addresses itself to the attention of the legislature. There requirement law the clerk of the binding various not to superior courts cancel deeds secure debts on their records the absence of evidence submitted to them exe- cuted with such to assure formality reasonably against transaction, that a forgeries series of possibility transactions, like those in this case could occur appearing *4 again ought to be foreclosed at first by ap- opportunity legislation. propriate Rehearing.

On Motion Counsel insists that this court should decide issues in this substantive case. See this connection Johnson, Murray the trial judge for this court to declare that impossible stipulation he considered committed error when and evidence have and evidence law so or reconstructed preserved provided for review this court. be available required the trial consider Nor do we think (Code (c); Ga. on file 238) 660; 1967, "stipu- when the lated and "all there was certain evidence” dispute facts pre- decision statement based its sented.”

Rehearing denied.