Tempo Carpet Company v. Collectible Classic Cars of Georgia, Inc.

305 S.E.2d 26, 166 Ga. App. 564, 1983 Ga. App. LEXIS 2249

Opinion

Quillian, Presiding Judge.

This is an appeal from a grant of summary judgment to one of the two defendants originally in this case. Following a jury trial the trial court directed a verdict against the plaintiff on his complaint and the jury returned a verdict on the remaining defendant’s counterclaim against the plaintiff. Plantiff brings this appeal.

The record contains eighteen enumerations of error which can only be resolved by reference to the evidence referred to in the orders complained of in this appeal. No transcript of evidence was forwarded with this record and none was ordered filed by plaintiff in its notice of appeal. Plaintiff instructed the Clerk “to transmit the entire record on appeal and to omit nothing.” However, our Code also directs that “the notice shall state whether or not any transcript of evidence and proceedings is to be transmitted as part of the record on appeal.” OCGA § 5-6-37 (formerly Code Ann. § 6-802).

Our Supreme Court has held: “The notice in the present appeal did not state whether a transcript of the evidence would be filed. The specification that ‘nothing’ is to be omitted from the record would not infer that the transcript is to be included, since the appellant is required to state whether the transcript will be filed, in addition to designating any portion of the record to be omitted.” Steadham v. State, 224 Ga. 78, 80 (159 SE2d 397); Accord: Aviation Electronics v. U. S. Energy Conservation Systems, 242 Ga. 224 (248 SE2d 610).

“Where no transcript is included in the record on appeal we must assume that the evidence was sufficient to support the judgment.” Burns v. Barnes, 154 Ga. App. 802 (1) (270 SE2d 57); Moore v. Morgan, 162 Ga. App. 639 (292 SE2d 514). Accordingly, we must affirm the judgment of the trial court. City of Atlanta v. Barton, 153 Ga. App. 426 (265 SE2d 345).

Judgment affirmed.

Sognier and Pope, JJ., concur.