Cornett v. Justice , 209 Ga. 375 ( 1952 )

209 Ga. 375 (1952) 72 S.E.2d 724

CORNETT
v.
JUSTICE.

17953.

Supreme Court of Georgia.

Submitted September 8, 1952. Decided October 14, 1952.

R. D. Smith and Howard Fowler, for plaintiff in error.

Robert R. Forrester, contra.

CANDLER, Justice.

The only assignment of error in the instant case relates to a judgment awarding the custody of three minor children to their maternal grandmother in a custody proceeding instituted by her against their parents. It is contended and argued by the plaintiff in error that the trial judge, under the evidence, abused his discretion in making the award complained of; and no other attack, as the record shows, is made upon the correctness of the judgment. A determination of the sole question presented for decision therefore involves necessarily a consideration of the evidence; and questions involving a consideration of the evidence will not be considered by this court where the evidence is not properly brought up. Sayer v. Brown, 119 Ga. 539 (46 S.E. 649); Smith v. Zachry, 128 Ga. 290 (2) (57 S.E. 513). Concerning the procedure to be employed in bringing evidence to this court for the review of litigation, it has been a settled rule of practice in this State for a long time that the evidence must be brought up in the bill of exceptions, or attached thereto as exhibits, duly and properly identified by the trial judge, or be embodied in an approved brief of the evidence and brought up as a part of the record. See Attaway v. Duncan, 206 Ga. 230 (1) (56 S.E. 269), and the cases there cited. In this case and after the judge's certificate, there is attached to the bill of exceptions an exhibit which purports to be a brief of the evidence in the case, but it is not identified or authenticated as such in any way by the trial judge; and, following our recent ruling in Blackwell v. Farrar, 208 Ga. 757 (69 S.E. 2d, 574), we must and do hold that the rule for bringing up evidence has not been complied with; and, since the burden is on one asserting error to show it affirmatively by the record (Smith v. State, 203 Ga. 636, 47 S.E. 2d, 866), and this can be done in the case at bar only by a consideration of the evidence, we will assume that the judgment complained of is correct and affirm it. See, in this connection, Roberts v. City of Cairo, 133 Ga. 642, 644 (66 S.E. 938).

Judgment affirmed. All the Justices concur except Almand, J., who dissents.