Davis v. Gamble

Court of Appeals of Georgia

Davis v. Gamble

259 S.E.2d 159, 151 Ga. App. 155, 1979 Ga. App. LEXIS 2478

CourtCourt of Appeals of Georgia

DecidedSeptember 4, 1979

Docket58163

StatusPublished

Cited by4 cases

This text of 259 S.E.2d 159 (Davis v. Gamble) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Davis v. Gamble, 259 S.E.2d 159, 151 Ga. App. 155, 1979 Ga. App. LEXIS 2478 (Ga. Ct. App. 1979).

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Opinion

Underwood, Judge.

The order appealed from provides: "This is a garnishment action. The defendant filed a traverse to the plaintiffs’ affidavit and a hearing was held. The court after consideration of the argument of counsel and briefs submitted hereby SUSTAINS the traverse and dissolves the garnishment.”

As no evidence was introduced and the record consists only of the affidavit and the traverse, both of which are in the form prescribed by Code Ann. § 46-605, and no reason for the sustaining of the traverse can be gleaned from the record, the judgment must be reversed.

While there are various contentions in the briefs as to what has, or has not, transpired, and as to what is, or is not, the law as applied to those variously hypothecated states of fact, none of this appears of record, and "assertions of counsel as to what transpired below cannot take the place of the record or transcript . . .” Dual S. Enterprises v. Webb, 138 Ga. App. 810, 816 (227 SE2d 418) (1976). "The appellate courts simply cannot nor are they authorized by law to infer from statements of counsel in their briefs facts which never managed an introduction into or even a nodding acquaintance with the record.” Airport Assoc. v. Audioptic &c., Inc., 125 Ga. App. 325, 326 (187 SE2d 567) (1972).

Judgment reversed.

McMurray, P. J., and Banke, J., concur. *156 C. Ronald Patton, for appellant. Douglas Slade, for appellees.

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Underwood, Judge.

The order appealed from provides: "This is a garnishment action. The defendant filed a traverse to the plaintiffs’ affidavit and a hearing was held. The court after consideration of the argument of counsel and briefs submitted hereby SUSTAINS the traverse and dissolves the garnishment.”

As no evidence was introduced and the record consists only of the affidavit and the traverse, both of which are in the form prescribed by Code Ann. § 46-605, and no reason for the sustaining of the traverse can be gleaned from the record, the judgment must be reversed.

While there are various contentions in the briefs as to what has, or has not, transpired, and as to what is, or is not, the law as applied to those variously hypothecated states of fact, none of this appears of record, and "assertions of counsel as to what transpired below cannot take the place of the record or transcript . . .” Dual S. Enterprises v. Webb, 138 Ga. App. 810, 816 (227 SE2d 418) (1976). "The appellate courts simply cannot nor are they authorized by law to infer from statements of counsel in their briefs facts which never managed an introduction into or even a nodding acquaintance with the record.” Airport Assoc. v. Audioptic &c., Inc., 125 Ga. App. 325, 326 (187 SE2d 567) (1972).

Judgment reversed.

McMurray, P. J., and Banke, J., concur. *156 C. Ronald Patton, for appellant. Douglas Slade, for appellees.

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259 S.E.2d 159, 151 Ga. App. 155, 1979 Ga. App. LEXIS 2478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-gamble-gactapp-1979.

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