Bolton v. Creety

Hall, Judge.

A claim was filed by the plaintiff in error to property previously levied on under a judgment fi. fa. After hearing the trial court denied the claim. On motion for new trial the defendant in error objected to the court’s approving the brief of the evidence on the ground that it was incomplete. The plaintiff in error moved (a) that the court or opposing counsel point out in what respect the tendered brief of evidence was incomplete and, (b) that she be allowed three days to correct the tendered brief of evidence. The trial court overruled and denied the plaintiff in error’s foregoing motion and denied the motion for new trial. To this judgment the plaintiff in error excepts. Held:

“On presentation of an incorrect brief of evidence the trial judge may require that it be corrected, and upon movant’s failure or refusal to correct it the judge may refuse to approve it, but before refusing on the ground that the brief is incorrect, he should call attention to the particulars in which it is incorrect and afford the movant an opportunity to correct it.” Camp v. Curry-Arrington Co., 46 Ga. App. 17, 18 (166 SE 428); Cannon v. Gaines, 199 Ga. 277 (3) (34 SE2d 103); Pound v. Dunn, 101 Ga. App. 461 (114 SE2d 163).

The trial judge erred in denying the motion for new trial on the ground that the brief of evidence was incorrect for the reason that he did not call attention to the particulars in which it was incorrect nor afford the movant an opportunity to correct it.

Decided April 10, 1963. Llop '& Long, Fred A. Gilbert, for plaintiff in error. Charles E. Walker, contra.

Judgment reversed.

Carlisle, P. J., and Bell, J., concur.