Brooks v. HOME CREDIT COMPANY, INC. ( 1973 )

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128 Ga. App. 176 (1973) 196 S.E.2d 176
BROOKS
v.
HOME CREDIT COMPANY, INC.
47765.
Court of Appeals of Georgia.
Submitted January 3, 1973. Decided February 14, 1973.
Cross & Newmark, John P. Cross, for appellant.

Hansell, Post, Brandon & Dorsey, Hugh E. Wright, W. Lyman Dillon, for appellee.

QUILLIAN, Judge.

This is an action for libel based upon a letter written by the attorney of the defendant to the employer of the plaintiff. It was alleged that this letter contained false, malicious, scandalous and defamatory allegations to the effect that plaintiff had been involved in litigation, had refused to pay legitimate debts, and had neglected and failed to keep previous agreements.

The defendant moved for summary judgment predicated on four affidavits by four named individuals. The trial judge in his final order, after having considered the pleadings and the depositions in question, decided that there was no genuine issue as to any material fact and that the defendant was entitled to a judgment as a matter of law. The plaintiff appeals from this judgment and in his notice of appeal specifically required the omission of the four depositions by the named individuals. Held:

It is still the law of Georgia that the burden is upon the party asserting error on appeal to show such error by the record. Smith v. State of Ga., 203 Ga. 636, 637 (47 SE2d 866); Herring v. Herring, 228 Ga. 492 (186 SE2d 538). Here the judgment was based on four depositions which at the appellant's request have been omitted. Appellant argues that the question here presented is purely a matter of law and that such depositions are not necessary for determination of the issues. This would not be true since if the depositions affirmatively established that the allegations of the petition were incorrect then the grant of summary judgment in favor of the defendants would be proper. Since the proof necessary for determination of the issues of this case *177 are not lawfully before this court, we will assume that the judgment is correct and affirm it. Greene v. McIntyre, 119 Ga. App. 296, 298 (167 SE2d 203); Attaway v. Duncan, 206 Ga. 230 (2) (56 SE2d 269).

Judgment affirmed. Bell, C. J., and Deen, J., concur.