City National Bank of Albany v. Wallenstein , 66 Ga. App. 542 ( 1942 )

Where a bill of exceptions recites: "Counsel for the plaintiff in fi. fa. and counsel for the said claimant agreed upon the facts and the issue involved and the same were by oral agreement submitted to the presiding judge . . to decide, without the intervention of a jury, who took the same under consideration and later the facts and issue were reduced to writing by said counsel on July 23, 1941, at the request of said judge and filed with him," and the bill of exceptions specifies as material to a clear understanding of the errors complained of the agreed statement of facts referred to, in the absence of an agreed statement of facts bearing the approval of the trial judge the bill of exceptions must be dismissed, the only question raised being based on the evidence. Greenfield v. Harvey, 191 Ga. 92 (11 S.E.2d 776), and cit. This is true for the reason that there is no way by which this court can determine from the record whether the statement of facts contained therein is the statement submitted to the trial judge, and is true, even though it is made to appear that the judge mailed the statement of facts submitted to him to the clerk of the court where the case was tried, accompanied by a letter to the clerk stating that the agreed statement of facts was enclosed. Under the ruling in Greenfield v. Harvey, supra, the motion to amend the bill of exceptions is denied.

Writ of error dismissed. Stephens, P. J., and Sutton, J.,concur.

DECIDED JANUARY 15, 1942.