Malone v. Evans

Court of Appeals of Georgia

Malone v. Evans

38 S.E.2d 816, 74 Ga. App. 34, 1946 Ga. App. LEXIS 449

CourtCourt of Appeals of Georgia

DecidedJune 26, 1946

Docket31270.

StatusPublished

This text of 38 S.E.2d 816 (Malone v. Evans) 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.

Bluebook

Malone v. Evans, 38 S.E.2d 816, 74 Ga. App. 34, 1946 Ga. App. LEXIS 449 (Ga. Ct. App. 1946).

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Opinion

Parker, J.

The bill of exceptions recites that the motion for new trial was heard and overruled at chambers in vacation on “the fifth day of March, 1946,” but the order overruling the motion, a part of the record in this court, recites that the motion was overruled on the fourth day of March, 1946, which was more than thirty days before the bill of exceptions was tendered on April 4, 1946. If the motion was overruled on March 4, as the record shows, the bill of exceptions was not tendered within thirty days from the date of the decision at chambers complained of, as required by the Code, § 6-902, and this court is without jurisdiction. Manifestly, there is a conflict between the recitals in the bill of exceptions and the record as to the date the motion was overruled, and it is well settled that, where there is such conflict, the record controls. Butler Ice &c. Co. v. Georgia Power Co., 49 Ga. App. 145 (174 S. E. 479); O lshine v. Bryant, 55 Ga. App. 91 (189 S. E. 576); Dismuke v . Trammell, 64 Ga. 428 (2); Brumfield v. Jackson, 193 Ga. 548 (19 S. E. 2d, 279).

*35 Decided June 26, 1946. N. J. Smith, for plaintiff in error. M. 0. Ba/rwich, contra.

The writ of error is dismissed. It may tie added that we have carefully examined all of the assignments of error and feel that an affirmance would he proper if we had jurisdiction and authority to consider the case.

Sutton, P. J., and Felton, J., concur.

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Parker, J.

The bill of exceptions recites that the motion for new trial was heard and overruled at chambers in vacation on “the fifth day of March, 1946,” but the order overruling the motion, a part of the record in this court, recites that the motion was overruled on the fourth day of March, 1946, which was more than thirty days before the bill of exceptions was tendered on April 4, 1946. If the motion was overruled on March 4, as the record shows, the bill of exceptions was not tendered within thirty days from the date of the decision at chambers complained of, as required by the Code, § 6-902, and this court is without jurisdiction. Manifestly, there is a conflict between the recitals in the bill of exceptions and the record as to the date the motion was overruled, and it is well settled that, where there is such conflict, the record controls. Butler Ice &c. Co. v. Georgia Power Co., 49 Ga. App. 145 (174 S. E. 479); O lshine v. Bryant, 55 Ga. App. 91 (189 S. E. 576); Dismuke v . Trammell, 64 Ga. 428 (2); Brumfield v. Jackson, 193 Ga. 548 (19 S. E. 2d, 279).

*35 Decided June 26, 1946. N. J. Smith, for plaintiff in error. M. 0. Ba/rwich, contra.

The writ of error is dismissed. It may tie added that we have carefully examined all of the assignments of error and feel that an affirmance would he proper if we had jurisdiction and authority to consider the case.

Sutton, P. J., and Felton, J., concur.

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38 S.E.2d 816, 74 Ga. App. 34, 1946 Ga. App. LEXIS 449, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malone-v-evans-gactapp-1946.

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