American International Industries, Inc. v. Ivan Allen Company

110 Ga. App. 148 (1964) 138 S.E.2d 61

AMERICAN INTERNATIONAL INDUSTRIES, INC.
v.
IVAN ALLEN COMPANY; and vice versa.

40761, 40783.

Court of Appeals of Georgia.

Decided July 13, 1964. Rehearing Denied July 28, 1964.

Leiter & Leiter, Marvin O'Neal, Jr., for plaintiff in error.

Howard & Storey, Robert W. Storey, contra.

PANNELL, Judge.

1. The alleged failure to file the brief of evidence with the motion for new trial in this case will not affect the movant's right to review by this court, Adams v. Overland-Madison Co., 27 Ga. App. 531 (3) (109 S.E. 413), Donalson v. Bank of Jakin, 33 Ga. App. 428 (2) (127 S.E. 229), Marks v. Maxwell Bros. Furniture Co., 50 Ga. App. 325 (177 S.E. 920), Stainback v. Dunn, 53 Ga. App. 464 (1) (186 S.E. 220), Code of 1933, § 6-805, and the instant motion to dismiss the writ of error because of the alleged absence of a duly filed brief of the evidence must be denied. Stainback v. Dunn, 53 Ga. App. 464, 465 (1), supra; Cumberland Island Co. v. Bunkley, 108 Ga. 756 (1) (33 S.E. 183); Cain v. State, 131 Ga. 770 (63 S.E. 289).

2. Pretermitting the question of whether the brief of evidence in the record, which the bill of exceptions recites was handed to the clerk for filing and duly approved by the trial judge, is properly before this court, the uncontradicted evidence of the properly authenticated (Code § 38-711) business records of the plaintiff as testified to by plaintiff's witness, together with the admission made in a letter written by the defendant to the plaintiff, demanded the finding in favor of plaintiff as directed by the trial judge. One In All Corp. v. Fulton Nat. Bank, 108 Ga. App. 142 (3) (132 SE2d 116). That the last item on one of the business records, a ledger card, was an item crediting the last balance (the amount sued for) and showing a balance of zero, which the witness explained was a bookkeeping entry made when the account was transferred to the "bad debt account," does not make a jury question as to the amount owed, in the absence of evidence to the contrary showing payment of the prior balance or evidence impeaching the testimony of the witness.

Judgment affirmed on main bill of exceptions; cross bill dismissed. Felton, C. J., and Frankum, J., concur.