Kilpatrick v. Smith

Court of Appeals of Georgia

Kilpatrick v. Smith

123 S.E. 35, 32 Ga. App. 44, 1924 Ga. App. LEXIS 247

CourtCourt of Appeals of Georgia

DecidedApril 16, 1924

Docket14963

StatusPublished

Cited by2 cases

This text of 123 S.E. 35 (Kilpatrick v. Smith) 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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Kilpatrick v. Smith, 123 S.E. 35, 32 Ga. App. 44, 1924 Ga. App. LEXIS 247 (Ga. Ct. App. 1924).

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Bloodworti-i, J.

This court cannot say, under the record as brought to it, that the judge of the superior court erred in overruling the certiorari in this case. Basing its ruling on that of the Supreme Court in Buckner v. State, 115 Ga. 238 (41 S. E. 583), and Colbert v. State, 118 Ga. 302 (45 S. E. 403), this court, in Gilmore v. Georgian Company, 17 Ga. App. 759 (88 S. E. 416), held that “in a certiorari case the answer of .the trial judge is the only source from which knowledge of the facts of the case and the rulings made therein can be derived.” In the record we are now considering the answer of the judge who tried the case is not specified as material to a clear understanding of the errors of which complaint is made, and it 'does not appear in the record, nor does it appear that any answer was ever made. However, there is specified as material “the agreement of counsel to use the [45]*45petition for certiorari as a true statement of facts.” Even this agreement was not incorporated in the record. But under the ruling in the foregoing eases, if it were before us it would avail plaintiff in error nothing. It is possible, though hardly probable, that a case might arise where counsel would agree upon a statement of facts in direct conflict with the answer of the judge who tried the case.

Judgment affirmed.

Broyles, O. J., and Buhe, J., concur.

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Bloodworti-i, J.

This court cannot say, under the record as brought to it, that the judge of the superior court erred in overruling the certiorari in this case. Basing its ruling on that of the Supreme Court in Buckner v. State, 115 Ga. 238 (41 S. E. 583), and Colbert v. State, 118 Ga. 302 (45 S. E. 403), this court, in Gilmore v. Georgian Company, 17 Ga. App. 759 (88 S. E. 416), held that “in a certiorari case the answer of .the trial judge is the only source from which knowledge of the facts of the case and the rulings made therein can be derived.” In the record we are now considering the answer of the judge who tried the case is not specified as material to a clear understanding of the errors of which complaint is made, and it 'does not appear in the record, nor does it appear that any answer was ever made. However, there is specified as material “the agreement of counsel to use the [45]*45petition for certiorari as a true statement of facts.” Even this agreement was not incorporated in the record. But under the ruling in the foregoing eases, if it were before us it would avail plaintiff in error nothing. It is possible, though hardly probable, that a case might arise where counsel would agree upon a statement of facts in direct conflict with the answer of the judge who tried the case.

Judgment affirmed.

Broyles, O. J., and Buhe, J., concur.

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123 S.E. 35, 32 Ga. App. 44, 1924 Ga. App. LEXIS 247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kilpatrick-v-smith-gactapp-1924.

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