Tomlinson v. Cox , 8 Ga. 111 ( 1850 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] In Graddy vs. Hightower, (1 Kelly’s R. 255,) this Court held, “ That nothing short of a brief of the testimony, approved by the Court, and such approval entered on the minutes, or agreed upon by the parties or their counsel, and such agreement entered on the minutes; at the term at which the rule for a new trial is applied for, will be a compliance with the 61st Rule of Court. This rule requires, that “ A brief of the testimony in the cause shall be filed by the party applying for such nexo trial, under the rexnsion and approval of the Court.’ Hotchkiss, 951. In Petty and others vs. Mahaffy, (3 Kelly, 217,) and Hartridge vs. Wesson, (4 Kelly, 101,) the same construction was given to this rule.

[2.] Now, it is not ¡pretended that there was any written evidence of any agreement of counsel as to the brief of the testimony in this case, filed at the term when the motion was made for a new trial, or written approval thereof by the Court. Had this been done, and the Clerk neglected to place it upon the minutes, it might have been entered, nunc pxo tunc, at the ensuing term. As it is, the objection is fatal.

• The brief itself, in the judgment of this Court, is fatally defective. It refera to fi. fas, judgments and interrogatories; as being attached, when, in fact, none such were appended. It is true, that the presiding Judge certifies, that upon the final hearing of the motion, “he recognized these papers as in Court before him.” But this does not cure the defect. It will not do to confide such matters even to the memory of the Court. Besides, it is the right of the opposite party to have a perfect brief filed, subject to his inspection, in the interim, in order that he may prepare for the argument.

[3.] We have been requested to suggest, what is the proper mode of making out the brief required by the rule. Perhaps the best plan would be, to embody in it a short -or abridged statement of the oral, and a copy of the written testimony. We will not say, nor are we to be understood as deciding, that it will not do to annex the original documents; but these are often the private papers of the party introducing them, and subject to be withdrawn from the office ; and inasmuch as this brief becomes a part of the record, it should be preserved in some permanent form.

In Spears vs. Smith, (7 Ga. R. 436;) we held, that it was not necessary that the brief should be entered on the minutes, as was ordered to be done In this case, but that it need be filed only.

Let the judgment of the Court below be reversed.