Smith v. Buchanan , 182 Ga. 250 ( 1936 )

Atkinson, Justice.

Mrs. S. T. Smith brought suit against Elmer Buchanan, seeking to have the defendant restrained and enjoined from building a house on a certain described lot of land. The defendant filed a. plea and answer. Issues of fact were involved, and at the hearing evidence was submitted by both sides in the form of affidavits. These affidavits were not properly made a part of the record for the consideration of this court. “Affidavits submitted on the hearing should be incorporated in the bill of exceptions to review a refusal of an interlocutory injunction, or be attached as exhibits thereto, duly and properly identified, or be embodied in an approved brief of evidence and brought up as a part of the record. Where neither of these methods is adopted, but copies of the affidavits áre sent up as a part of the record, for the reason that the trial judge, subsequently to the certification and filing of the bill of exceptions, identified the originals as having been submitted on the hearing, such affidavits have not been brought to this court in the manner prescribed by law, and therefore they can not be considered. As the question made by the assignment of error necessarily involves a consideration of the evidence, no adjudication thereon can be had, and the writ of error must be dismissed.” Eubank v. Eastman, 120 Ga. 1048 (48 S. E. 426). In the instant case there is no identification by the judge of the affidavits introduced on the hearing, and these affidavits are attached after the certificate of the judge to the bill of exceptions. In view of the ruling cited above, and of other decisions laying down the same rule, the motion to dismiss must be sustained.

Writ of error dismissed.

All. the Justices concur.