Opinion
16026.
DECEMBER 1, 1947. REHEARING DENIED DECEMBER 16, 1947.
Divorce, etc. Before Judge Andrews. Fulton Superior Court. September 9, 1947.
Poole, Pearce Hall, and Margaret Hills, for plaintiff in error.
James L. Moore Will G. Moore, contra.
1. Where a bill of exceptions contains recitals indicating that a brief of the evidence had not been unqualifiedly approved, and that the brief in fact did not correctly show the evidence, but the duly certified transcript of the record shows that it was unconditionally approved and ordered filed as a part of the record, the latter will be accepted in preference to what appears in the certificate of the judge. Adams v. Holland, 101 Ga. 43 ( 28 S.E. 434); Sweatman v. Wall, 111 Ga. 871 ( 36 S.E. 954); Southern Railway Co. v. Flemister, 120 Ga. 524 ( 48 S.E. 160); Crews v. Ransom, 183 Ga. 179 ( 188 S.E. 1); Saliba v. Saliba, 201 Ga. 681 ( 40 S.E.2d 732).
2. "The first grant of a new trial shall not be disturbed by the appellate court, unless the plaintiff in error shall show that the judge abused his discretion in granting it, and that the law and facts require the verdict notwithstanding the judgment of the presiding judge." Code, § 6-1608. Under the pleadings and the evidence in the instant case, the verdict for the plaintiff in error was not demanded, and the judge did not abuse his discretion in granting a new trial.
Judgment affirmed. All the Justices concur, except Wyatt, J., who took no part in the consideration or decision of this case.