Bennett v. Executive Benefits, Inc. , 210 Ga. App. 429 ( 1993 )

210 Ga. App. 429 (1993) 436 S.E.2d 544

BENNETT et al.
v.
EXECUTIVE BENEFITS, INC.

A93A2069.

Court of Appeals of Georgia.

Decided September 30, 1993.

William R. Bennett, pro se.

Robert J. Dyes, pro se.

Alston & Bird, Donna P. Bergeson, Branch, Pike & Ganz, Cathleen M. Devlin, Robert N. Dokson, for appellee.

McMURRAY, Presiding Judge.

This appeal involves just one branch of a multi-faceted action by plaintiffs Bennett and Dyes. The complaint alleges that plaintiffs contracted with defendant Kruse to obtain a health insurance policy, were informed by Kruse that they were covered by a health insurance policy, and repeatedly paid premiums on the policy to Kruse when in fact no policy of insurance on plaintiffs had been issued. Plaintiffs' action is against Kruse, along with multiple insurance companies and agencies. This appeal is taken from the grant of summary judgment in favor of defendant Executive Benefits, Inc. and against plaintiff. Held:

The notice of appeal filed by plaintiffs is not in the form directed by OCGA § 5-6-37 in that, rather than designating portions of the record to be omitted on appeal, plaintiffs have instructed that only items listed on the notice of appeal be included in the record sent to this court. Under the statutory scheme, the notice of appeal provides information concerning omission of portions of the record before the lower court. Nonetheless, after study of the record sent up and communication with the clerk of the court below, it is apparent that under the directions contained in the notice of appeal, some portion of the evidence upon which the superior court relied in this case has been omitted from the record on appeal.

It is well established that the burden is on the party alleging error to show it by the record and that where the proof necessary for determination of the issues on appeal is omitted from the record, an appellate court must assume that the judgment below was correct and affirm. Brown v. Frachiseur, 247 Ga. 463 (277 SE2d 16); Jackson v. Dept. of Transp., 201 Ga. App. 863, 865 (412 SE2d 847); Transport Indem. Co. v. Hartford Ins. Co., 198 Ga. App. 265, 266 (401 SE2d 294); Riverbend Ford-Mercury v. Kirksey, 196 Ga. App. 307, 309 (1) (395 SE2d 898); Taylor v. Colwell Mtg. Corp., 187 Ga. App. 397 (370 SE2d 520).

Judgment affirmed. Johnson and Blackburn, JJ., concur.