Caldwell v. Sturdivant

Hines, J.

The bill of exceptions specifies certain affidavits as parts of the record necessary to a clear ^understanding of the errors complained of. They are not embraced in the bill of exceptions nor attached thereto as exhibits. They appear in the record, and on each is the entry, " Identified and used in case,” which entry is signed by the trial judge. The brief of the oral evidence taken on the hearing of the application for injunction and approved by the trial judge appears in the record. Held: (1) Where exception is taken to the grant of an interlocutory injunction, affidavits used on the hearing of the application must be brought up in the bill of exceptions, or be attached as exhibits to the bill of exceptions and duly identified by the presiding judge, or be included in the brief of the evidence, approved and made a part of the record, and thus brought to this court. Roberts v. City of Cairo, 133 Ga. 642 ( 66 S. E. 938 ); Dolvin v. American Harrow Co., 134 Ga. 113 ( 67 S. E. 541 ); Remedy v. Rogers, 145 Ga. 292 ( 88 S. E. 974 ); Rushing v. DeLoach, 149 Ga. 483 ( 100 S. E. 571 ). (2) Where such affidavits appear in the record after the certificate of the presiding judge to the bill of exceptions, and where they are not embraced in the, brief of the evidence approved by the court and made a part of the record, they are not lawfully before this court and can not be considered. Rushing, v. DeLoach, supra. (3) The bill of exceptions showing on its face that all of the evidence material to a clear consideration of the errors complained of, including that contained in such affidavits, is not properly before this court, and for that reason can not be considered, and there being no assignment of error which can be determined without it, the judgment must be affirmed. Jones v. Wadley, 145 Ga. 569 ( 89 S. E. 681 ); Rushing v. DeLoach, supra. Judgment affirmed.

All the Justices concur.