Dunn v. Hallett, Seaver & Burbank

70 Ga. 426

• Court: Supreme Court of Georgia
• Decided: March 13, 1883
• Status: Published

Opinion

Jackson, Chief Justice.

The judgment of the court below was based upon an agreed statement of facts. To review it, those facts must appear in the bill of exceptions. They do not appear in this, and therefore error based on a judgment upon those facts does not appear and cannot appear here, so as to be reviewed.

Further, it appears that what was agreed upon as-contained in a lost record is not- true, as appears from the record since found, and that record is sought to be made part of the writ of error to a judgment not rendered on it, but on a mistake in regard to it, the court considering the recollection and agreement of counsel as to what the record contained in the place of the record, and adjudicating the point before it, not on the record as found, but - on the agreement about it. So far as this case is concerned, the record cannot change what was before the judge below; because we review only his judgment on what was before him; and hence that record cannot be considered here.

Moreover, the letter appended to the bill of exceptions by order of the judge, from counsel for plaintiff in error, itself shows that the facts recited in the bill of exceptions are not the facts before the court below when the case was adjudicated.

So that the writ of error must be dismissed, first, because the agreed statement of facts is not clearly set out in the bill of exceptions, and secondly, because what is therein set out is not the facts which were before the court .below.

Writ of error dismissed.