Rushing v. DeLoach , 149 Ga. 483 ( 1919 )

George, J.

1. Where exception is taken to a refusal to grant an interlocutory injunction, affidavits used on the hearing of the application, in order to be considered by this court, must be brought up in the bill of exceptions, or attached thereto as exhibits and duly identified by the presiding judge, or be included in a brief of evidence approved and made a part of the record. Roberts v. Cairo, 133 Ga. 642 (66 S. E. 938).

2. The act of 1911 (Acts 1911, p. 149) applies where a motion for new trial is heard in the court below and the respondent therein fails to object to the brief of evidence for want of approval, and permits the hearing to proceed without such approval. The act does not apply to this case. Springer v. Owen, 145 Ga. 730 (2) (89 S. E. 780).

3. A bill of exceptions stated that certain affidavits were introduced in evidence by the plaintiff and certain other affidavits were introduced in evidence by the defendant, naming the affiants, and that the affidavits were attached to the bill of exceptions as exhibits, marked with certain letters of the alphabet. After the certificate of the presiding judge appeared copies of-the affidavits introduced by the plaintiff, duly identified by the signature of the judge, and also following his certificate appeared what purported to be copies of the affidavits introduced by the defendant, but they were not identified by the signature of the judge. A motion to dismiss the writ of error upon the ground indicated was filed by the defendant in error. Held: The bill of exceptions shows on its face that all the evidence material to a consideration of the errors complained of is not lawfully before this court, in such manner that it can be considered; and there being no assignment of error which can be determined without it (treating the assignment of error in the bill of exceptions as sufficient in form), the judgment must be affirmed. Roberts v. Cairo, supra; Jones v. Wadley, 145 Ga. 569 (89 S. E. 681). Springer v. Owen, supra.

Judgment affirmed.

All the Justices ooncwr.

Petition for injunction. Before Judge Hardeman. Bulloch superior court. April 30/1919.

Fred. T. Lanier, for plaintiffs. Deal & Renfroe, for defendants.