Smith v. State , 62 Ga. App. 733 ( 1940 )

ON MOTION FOR REHEARING. A request is made that this court should send down to the trial court and request that, if a brief of evidence was filed there in this case, it be sent here for our consideration. If it had appeared either from the record or the bill of exceptions that such a brief had been filed in the trial court, this court, on its own motion, would have directed that it be sent up as a part of the record necessary for a determination of the points involved. In the case of Thompson v. Simmons,139 Ga. 845 (78 S.E. 419), cited by counsel, it appears from an examination of the original record that it was affirmatively shown that such brief of evidence had been filed and approved in the trial court. This distinction in the Thompson case is clearly pointed out in the case of Bell v. State, 19 Ga. App. 41 (2) (90 S.E. 733), also cited by counsel for movant. A further citation of authorities on this point is as follows:Morrison v. Dodge, 94 Ga. 730 (20 S.E. 422); Robinson v.Veal, 65 Ga. 592 (2); Price v. Price, 122 Ga. 321 (50 S.E. 91); Stansell v. Merchants Farmers Bank, 123 Ga. 278 (51 S.E. 321); Hawkins v. Tanner, 129 Ga. 497 (59 S.E. 225); Terrell County v. Dawson, 172 Ga. 403 (7) (158 S.E. 47); Shaine v. Block, 28 Ga. App. 329 (111 S.E. 79);Warren v. Colvin, 49 Ga. App. 91 (174 S.E. 257); GeneralTire Rubber Co. v. Brown Tire Co., 46 Ga. App. 548 (3) (168 S.E. 75). The first intimation that this court had that there was a brief of evidence filed in this case was in the motion for rehearing. We may say also that a consideration of the complaints in the motion for new trial shows no ground for a reversal of the case.

Rehearing denied. Broyles, C. J., and MacIntyre, J., concur.