Blackwell v. Farrar

Supreme Court of Georgia

Blackwell v. Farrar

69 S.E.2d 574, 208 Ga. 757, 1952 Ga. LEXIS 349

Supreme Court of Georgia·Decided February 11, 1952·No. 17716, 17717·Published·Cited by 9 cases

Opinions

Atkinson, Presiding Justice.

The only assignments of error in the main bill of exceptions relate to admissibility of evidence, and to the refusal to grant an interlocutory injunction. The trial judge’s certificate recites “that the above and foregoing bill of exceptions, including exhibit ‘A’ thereto attached, is true and contains all of the evidence and specifies all of the record material to a clear understanding of the errors complained of.” A motion was made in the Supreme Court to dismiss the bill of exceptions, on the ground that the exhibit “A” referred to therein is not a part of the bill of exceptions because it does not precede the judge’s certificate but follows it, and it is not identified by the judge. Where no motion for a new trial is filed the evidence may follow the judge’s certificate as an exhibit, referring to it as such in the bill of exceptions, and having the judge to place his signature to or upon the exhibit to identify it as the same to which the bill of exceptions refers. Colquitt v. Solomon, 61 Ga. 492; Roberts v. City of Cairo, 133 Ga. 642 (2) (66 S. E. 938); Rushing v. DeLoach, 149 Ga. 483 (3) (100 S. E. 571); Smith v. Buchanan, 182 Ga. 250 (185 S. E. 317); McElveen v. O’Kelley, 193 Ga. 824 (20 S. E. 2d, 69); Boney v. Smallwood, 204 Ga. 782 (51 S. E. 2d, 847); Attaway v. Duncan, 206 Ga. 230 (1) (56 S. E. 2d, 269). Held:

Where as here the judge’s certificate refers to an exhibit containing the evidence which follows the certificate, but the exhibit is not identified as being the same to which the certificate refers, and no questions being presented which can be determined in the absence of the evidence, the judgment must be affirmed. In such circumstances the cross-bill of exceptions will be dismissed, since no ruling on the cross-bill could benefit the plaintiff in error therein.

Judgment on the main bill of exceptions affirmed. Cross-bill of exceptions dismissed.

All the Justices concur except Candler, J., who is disqualified, and Almand, J., who dissents.

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Atkinson, Presiding Justice.

The only assignments of error in the main bill of exceptions relate to admissibility of evidence, and to the refusal to grant an interlocutory injunction. The trial judge’s certificate recites “that the above and foregoing bill of exceptions, including exhibit ‘A’ thereto attached, is true and contains all of the evidence and specifies all of the record material to a clear understanding of the errors complained of.” A motion was made in the Supreme Court to dismiss the bill of exceptions, on the ground that the exhibit “A” referred to therein is not a part of the bill of exceptions because it does not precede the judge’s certificate but follows it, and it is not identified by the judge. Where no motion for a new trial is filed the evidence may follow the judge’s certificate as an exhibit, referring to it as such in the bill of exceptions, and having the judge to place his signature to or upon the exhibit to identify it as the same to which the bill of exceptions refers. Colquitt v. Solomon, 61 Ga. 492; Roberts v. City of Cairo, 133 Ga. 642 (2) (66 S. E. 938); Rushing v. DeLoach, 149 Ga. 483 (3) (100 S. E. 571); Smith v. Buchanan, 182 Ga. 250 (185 S. E. 317); McElveen v. O’Kelley, 193 Ga. 824 (20 S. E. 2d, 69); Boney v. Smallwood, 204 Ga. 782 (51 S. E. 2d, 847); Attaway v. Duncan, 206 Ga. 230 (1) (56 S. E. 2d, 269). Held:

Where as here the judge’s certificate refers to an exhibit containing the evidence which follows the certificate, but the exhibit is not identified as being the same to which the certificate refers, and no questions being presented which can be determined in the absence of the evidence, the judgment must be affirmed. In such circumstances the cross-bill of exceptions will be dismissed, since no ruling on the cross-bill could benefit the plaintiff in error therein.

Judgment on the main bill of exceptions affirmed. Cross-bill of exceptions dismissed.

All the Justices concur except Candler, J., who is disqualified, and Almand, J., who dissents.

Blackwell v. Farrar, 69 S.E.2d 574, 208 Ga. 757, 1952 Ga. LEXIS 349 (Ga. 1952).

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