Georgia Railroad v. Mitchell , 75 Ga. 144 ( 1886 )

Blandeord, Justice.

A motion was made to dismiss this writ of error, upon the ground that the depositions of one Hutchinson are not embraced in the brief of evidence filed on the motion for new trial and the same are not annexed or attached to said brief. The parties by their counsel agreed in writing that the clerk of the court might certify the same as part of the record. This agreement was approved by the presiding judge, and the clerk ordered to certify the deposition as part of the record, which he did, not as part of the brief of evidence, but merely incorporated the same in the record, and the'judge in the bill of exceptions states that this was done.

The 49th rule requires the applicant for new trial to make out a brief of the oral and copy of the written evidence, which shall be filed under the approval of the judge who tried the case, and then the same becomes a part of the record in the case and may be certified by the clerk as such.

If the parties by agreement and order of the court could dispense with a part of the evidence, being incorporated in the brief of evidence, they could as wel 1 dispense with all the evidence, and thereby render nugatory the rule which requires the evidence to be incorporated in the brief. If we should countenance this departure from the rule, we would be called upon soon to sanction the abrogation of the rule itself. If the judge can by his order direct the clerk to copy certain written evidence and place the same in the transcript of the record sent up to this court, then he could as well direct the clerk to copy the stenographer’s notes of the evidence and incorporate that in the transcript of the record, and thus the 49th rule would be practically abolished. The evidence had upon the trial of a case, when a motion for new trial is made, becomes a part of the record, when approved by the judge who tried the case, in the brief of evidence. If any portion of the evidence should be left out, but which was subsequently attached to the brief and approved by the judge, then this would do, but this was not done in this case. Hutchinson’s answers to interrogatories were never attached to the brief of evidence, but the clerk found them in his office, and under agreement of counsel and the order of the court, he copied them and embraced the copy in the transcript sent to this court.

The case of the Erie City Iron Works vs. Angler, 66 Ga., 634, is very much dike this one, in which the writ of error was dismissed.

Wo feel constrained to dismiss this writ of error, and we are less reluctant to do so because from a careful inspection of the record in this case, we are satisfied that substantial justice has been done by the verdict and judgment rendered in this case.

Writ of error dismissed.