Frost v. Gasaway

190 S.E.2d 902, 229 Ga. 354, 1972 Ga. LEXIS 614

Opinions

Undercofler, Justice.

This appeal is from the following judgment of the trial court: "The within and foregoing case coming on regularly and to be heard on plaintiff’s motion for summary judgment and it being agreed by counsel for all parties that the court consider the defenses of defendants Daniel F. Gasaway and Administrator of Veterans Affairs of failure to state a claim and res judicata, and the parties having stipulated certain evidence concerning these defenses, after hearing argument of counsel, the stipulation of the parties and evidence, it is hereby considered ordered and adjudged as follows: 1. The first and third defenses of defendants Gasaway and Administrator of Veterans Affairs are hereby sustained . . Held:

The trial court’s judgment showed that he considered "the stipulation of the parties and the evidence.” Therefore the motion to dismiss for failure to state a claim was converted into a motion for summary judgment. Code Ann. § 81A-112 (b) (Ga. L. 1966, pp. 609, 622; 1967, pp. 226, 231). The record does not contain the stipulation of the parties or the evidence. This court is unable to review the ruling on the motion for summary judgment since we do not have before us the facts which were considered by the trial court. Smith v. Smith, 223 Ga. 795 (2) (158 SE2d 679); Herring v. Herring, 228 Ga. 492 (186 SE2d 538).

In a supplemental brief filed in this court the appellant contends that he requested the trial court clerk to forward to this court all of the record and the depositons of the witnesses. Attached to his brief is a copy of a letter from the trial court clerk seeking direction on whether certain "sealed” depositions should be forwarded to this court. A copy of a letter from the trial court judge to the clerk states that counsel for the appellant "made a statement of fact to the court and counsel for each of the other parties made brief statements and all agreed that there was no dispute between them concerning the facts and the court based its decision upon the agreed statement of facts presented by counsel. I, therefore, respectfully request that the depositions not be made a part of the record as they were not considered by the court when it made its decisions.”

Judgment affirmed.

All the Justices concur. Hawes, J., concurs specially. Argued June 12, 1972 Decided June 28, 1972 Rehearing denied July 27, 1972. Spivey & Carlton, Milton A. Carlton, Charles B. Merrill, Jr., for appellant. John A. Darsey, Erwin, Epting, Gibson & Chilivis, Nicholas P. Chilivis, H. W. Davis, Davis & Davidson, Heyman & Sizemore, W. Dan Greer, Richardson, Chenggis & Constantinides, Platon P. Constantinides, for appellees.