Ivester
v.
Miller

Court of Appeals of GeorgiaOct 17, 1958
98 Ga. App. 359 (Ga. Ct. App. 1958)
98 Ga. App. 359105 S.E.2d 774

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37259.

DECIDED OCTOBER 17, 1958.

Appellate procedure. Fulton Civil Court. Before Judge Wright. May 21, 1958.

Walter O. Allanson, for plaintiff in error.

McCord Cooper, contra.


Where as in this case there has been no bona fide attempt to comply with Code (Ann.) § 70-305, this court will not pass upon any assignment of error which would require a reference to the purported brief of evidence. The rule is well stated in Anderten v. State, 92 Ga. App. 544 ( 88 S.E.2d 719): "While by the provisions of Code § 70-305 as amended by the Act of 1953 (Ga. L. 1953, Nov.-Dec. Sess., pp. 440, 446; Code, Ann., § 70-305), the stenographic report of the trial of the case may be used in place of a brief of evidence, the immaterial questions and answers and parts thereof must be stricken." This rule does not contemplate that the original stenographic report will be sent to this court with the excluded parts included and marked out with red pencil. Williamson v. Yakupian, 211 Ga. 61 ( 84 S.E.2d 15). And, where upon appeal to this court, it appears from the record that the purported brief of evidence consists of the entire stenographic report of the trial and almost very page includes either motions to rule out evidence, objections to the introduction of evidence, rulings of the court passing upon various objections and motions of counsel, it is apparent upon the face of the record that there has been no bona fide attempt whatsoever to comply with the requirements of Code (Ann.) § 70-305, and this court will not pass upon any assignment of error in the determination of which reference must be had to the purported brief of evidence.

The only exception being to the overruling of the general grounds of the motion for a new trial the judgment is affirmed.

Judgment affirmed. Felton, C. J., and Nichols, J., concur.

DECIDED OCTOBER 17, 1958.