Caldwell v. Commercial Investment Discount Inc.

The appellate division of the civil court of Fulton County has no authority to consider, as a part of the brief of the evidence considered by the trial court, documents which are neither made a part of the approved brief of evidence nor properly identified as such.

DECIDED MARCH 6, 1943. P. M. Caldwell sued Commercial Investment Discount Inc., to recover damages for alleged illegal repossession of a Plymouth automobile. The judge, trying the case without a jury, found for the plaintiff $150. The defendant's motion for new trial was overruled on December 4, 1941. The defendant filed its appeal to the appellate division of the civil court of Fulton County, assigning error on that ruling. While the appeal was pending and after the trial judge had approved the brief of evidence, counsel for defendant filed with the trial judge a motion requesting that certain documents be made a part of the record. The motion referred to the documents as a conditional-sale contract and a note signed by the plaintiff, dated October 28, 1940. The trial judge passed a nunc pro tunc order, as of December 18, 1941, as follows: "Upon reading the foregoing petition, and under authority of the Acts of the General Assembly of 1933, pages 297-298, section 5 (b), the said conditional-sale contract signed by P. M. Caldwell and admitted in evidence in said case, the same being dated the 28 day of October, 1940, is hereby specified as a part of the record in said case; it being the intention of the court, upon the previous approval of the bill of exceptions and brief of evidence, to incorporate and include said conditional-sale contract as a part of the record material to a clear understanding of the errors complained of in said case; that the same was presented to him [me] along with the brief of evidence as a portion of the same when the bill of exceptions and brief of evidence were presented to him [me] for approval on December 18, 1941. It is further ordered that said conditional-sale contract be transmitted to the appellate division by the clerk, for its consideration in the further determination of said case. This December 18, 1941."

The presiding judge of the appellate division signed the following order: "The above case coming on for hearing before the appellate division, and it appearing to the court that by inadvertence a certain contract dated October 28, 1940, said contract being signed by plaintiff herein and also a certain letter of notice written by defendant to plaintiff on June 6, 1941, were omitted from the record by the trial court to the appellate division, it is now ordered, adjudged, and directed that the clerk of the court certify and send up to this court, as a part of the record in said case, the two instruments above described; and it is further ordered that under the powers bestowed upon the court and the appellate division that said instruments be and the same are hereby made a part of the record in said case for the consideration of this court upon the appeal now pending. Ordered further that a copy of this order be mailed by the clerk to counsel for appellee. This 20 days of May, 1942."

The brief of evidence, not including the note and conditional-sale contract, was approved on December 18, 1941. The bill of exceptions to the appellate division specified as a part of the record material to a clear understanding of the case: "The brief of evidence, together with order and entries thereon approved by the trial judge and filed in said case; included in said evidence being a certain letter dated June 6, 1941, written by Commercial Investment Discount Inc. to P. M. Caldwell, and conditional-sales contract and note of plaintiff, these latter being introduced and admitted in evidence upon said trial." The plaintiff filed exceptions pendente lite to the order of the appellate division ordering the additional evidence sent up to it. The note and conditional-sale contract are attached to the record in the case, and appear on the last several pages. They do not precede the certificate of the trial judge, or the certificate of the presiding judge of the appellate division, nor are they in any way identified as a part of the record or as the documents referred to in the orders of the trial judge and the presiding judge of the appellate division. The appellate division reversed the trial judge's order which denied a new trial. The defendant excepted. The trial judge cited as authority for his action in passing the nunc pro tunc order the following part of Ga. L. 1933, pp. 290, 297 § 5 (b): "Where the amount involved is less than three hundred dollars, exclusive of interest, attorneys' fees, and costs, the trial judge shall at any time, in the furtherance of justice, upon such terms as may be just, permit any claim, suit, process, proceeding, pleading, or record to be amended, in form or in substance, or material supplemented matter to be set forth in an amended or supplemental oral claim or pleading. The judge at every stage of the proceedings must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties, and amendments changing the cause of action, or presenting a new cause of action, arising out of the same transaction or subject-matter, shall be allowed, providing, however, for time to the opposite party, where in the discretion of the court it is deemed necessary to meet the new matter claimed by the amendment." Whether this law gives authority for the action attempted in this case or not (and we do not now decide that question), since the additional documents ordered sent up to the appellate division were not certified by the trial judge as a part of the brief of evidence, or identified as such, the appellate division had no authority to consider them. They were simply sent up to the appellate division by the clerk of the court; and while it may be that they were the documents in evidence, we know of no rule of law which would authorize original documentary evidence, or copies thereof, to be considered by an appellate court which had not been certified to as a part of the record or otherwise properly identified by the trial judge.Porter v. Terrell, 2 Ga. App. 269 (58 S.E. 493); Moore v. Southern Ry. Co., 31 Ga. App. 512 (121 S.E. 138);Goodwyn v. Bennett, 41 Ga. App. 285 (152 S.E. 605);McBurnette v. Huff, 154 Ga. 452 (114 S.E. 578);Greenfield v. Harvey, 191 Ga. 92 (11 S.E.2d 776);Woodall v. McCurry, 50 Ga. App. 313 (177 S.E. 919);Smith v. Buchanan, 182 Ga. 250 (185 S.E. 317). As appears from the opinion of the presiding judge of the appellate division in reversing the judgment of the trial judge, the appellate division considered as part of the brief of the evidence the documents above referred to, which we have held were not legally a part of the brief of evidence. The appellate division having reversed the judgment upon a consideration of matters that did not constitute a legal brief of the evidence, the judgment of the appellate division should be reversed. The case will then stand in the appellate division for further proceedings as may appear to be meet and proper.

Judgment reversed. Stephens, P. J., and Sutton, J., concur.