EVANS v. ANDERSON; and vice versa

Supreme Court of Georgia1959-04-09No. 20398, 20410

214 Ga. 828

Summary · law.co

Holding. The judgment was affirmed on the main bill of exceptions, and the cross-bill of exceptions was dismissed because the appellant's brief of evidence did not comply with statutory and case requirements for elimination of immaterial matter from the stenographic report.

Georgia law was amended in 1953 to allow appellants to submit stenographic trial transcripts in place of narrative briefs of evidence, provided that immaterial questions, answers, and irrelevant portions are actually removed from the record rather than merely marked through. The court has consistently emphasized that "stricken" means physically eliminated, not merely crossed out, to reduce the appellate court's burden of reviewing voluminous irrelevant material and to prevent unnecessary congestion of court files.

In this case, the appellant's purported brief of evidence failed to comply with these requirements. Approximately one-seventh of the eighty-five-page stenographic report contained irrelevant matter that was not properly eliminated. Because the only error assignment concerned the trial court's denial of a motion for a new trial, and proper review of that issue would require reference to a compliant brief of evidence, the appellate court found no reviewable question presented for decision.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Proper preparation of briefs of evidence from stenographic trial transcripts
Meaning of "stricken" in context of eliminating immaterial evidence
Procedural deficiency preventing appellate review

Procedural posture

The appellant challenged the trial court's denial of a motion for a new trial through a bill of exceptions, with a cross-bill of exceptions filed by the other party.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Hawkins, Justice.

In an effort to co-operate with the Bar and materially reduce the amount of labor on the part of counsel for the plaintiff in error in reducing to narrative form the evidence adduced upon the trial when preparing a brief of evidence for use on appeal, this court, with the assistance of the Committee from the Bar of this State, appointed by the Supreme Court, and by act of the General Assembly (Ga. L. 1953, Nov.-Dee. Sess., pp. 440, 446), amended the law with respect to the brief of evidence, and provided for the use of the stenographic report of the trial of the case “with immaterial questions and answers and parts thereof stricken.” Since that amendment, this court has repeatedly held that the stenographic report of the trial of the case may be used in place of a brief of the evidence, provided “immaterial questions and answers and parts thereof” be stricken, and that the word “stricken” means eliminated from the record in this court, and not merely stricken with a pen, or crossed out with a typewriter, and left in the record. Among the reasons for requiring elimination of immaterial questions, answers, and parts of the stenographic report, are (1) to relieve this court of the burden of wading through what frequently amounts to a conglomerated mass of matter wholly irrelevant and immaterial to any question presented for decision; and (2) to prevent the unnecessary congestion and overcrowding of the permanent files of this court. For some of the cases dealing with this question, see Turner v. Turner, 205 Ga. 578 (54 S. E. 2d 410); Robinson v. State, 209 Ga. 650 (75 S. E. 2d 9, 345 U. S. 999, 73 S. Ct. 1144, 97 L. Ed. 1405); Heard v. Helms, 210 Ga. 669 (82 S. E. 2d 129); Brown v. Clarke, 211 Ga. 61 (84 S. E. 2d 14); Williamson v. Yakupian, 211 Ga. 61 (84 S. E. 2d 15); Hester Bennett Lumber Co. v. Alexander, 211 Ga. 402 (86 S. E. 2d 222); McDonald v. Fletcher, 211 Ga. 405 (86 S. E. 2d 215); Lee v. Baughn, 211 Ga. 525 (87 S. E. 2d 69); Myhand v. Harris, 211 Ga. 567 (87 S. E. 2d 376); Anderson v. State, 211 Ga. 768 (88 S. E. 2d 149); Calhoun v. State, 211 Ga. 819 (89 S. E. 2d 197); Childers v. Goble, 211 Ga. 860 (89 S. E. 2d 499); Keith v. State, 213 Ga. 743 (101 S. E. 2d 705). While the record in the present case does not violate this rule to the extent that some of the records do, approximately one-seventh of the eighty-five pages appearing in the stenographic report contain irrelevant matter, and the purported brief of evidence does not comply with the requirements of Code (Ann.) § 70-305 and the foregoing decisions of this court. Since the only assignment of error in the bill of exceptions is that the court erred in denying the plaintiff’s motion for a new trial, based on the general grounds, and one special ground complaining of the direction of a verdict for the defendant, in the determination of which reference to the purported brief of evidence would be necessary, no question is presented for decision by this court.

Submitted March 9, 1959

Decided April 9, 1959.

Dan S. Cowart, C. L. Cowart, for plaintiff in error.

Al L. Layne, B. D. Dubberly, contra.

Judgment affirmed on the main bill of exceptions; cross-bill of exceptions dismissed.

All the Justices concur.