Berkeley v. State of Georgia , 74 Ga. App. 711 ( 1947 )

"The trial in the superior court of such a case on appeal `is had without reference to the evidence introduced in the former trial and is a de novo investigation.'

"`When a case is on appeal any amendment, whether in the matter of form or substance, may be made which could have been made while the case was in the primary court.'

"`The new trial is had on papers connected with the case when the judgment was rendered, subject to proper amendment.' . .

"`The trial of the case on appeal is a de novo proceeding, but it by no means follows that the pleadings and defenses in the case are to begin over again in this new trial. On the contrary, the new trial is had on the papers connected with the case when the judgment was rendered . . subject to proper amendment.'Freeman v. Carr, 104 Ga. 718 (30 S.E. 935)." Wofford v.Vandiver, 72 Ga. App. 623 (3-4-5), 626 (34 S.E.2d 579).

In the instant case, the verdict and judgment in the superior court on a purported appeal from an inferior judicatory were erroneous on the face of the pleadings and the record, because no original pleadings or papers of any kind appear from the record to have been transmitted from the inferior judicatory to the superior court. While it is true that the trial on an appeal in a superior court from an inferior judicatory is to be had without reference to the evidence introduced in the latter court, yet here, where no papers connected with the case in the primary court or inferior judicatory were transmitted to the superior court with the purported appeal, if any, there were no papers transmitted from the inferior court which could be amended in the superior court; and since the case in the superior court must be tried on papers connected with the case in the inferior judicatory, which should be transmitted to the superior court subject to proper amendment in the superior court, it follows that there were no pleadings or papers in the superior court which would authorize the exercise of the jurisdiction of the superior court on a purported appeal of the case from the inferior judicatory. Thus, the question to be determined by the superior court is one of law; that is, whether a legal verdict and judgment can be founded upon any operative pleadings or papers in the superior court on a purported appeal from the inferior judicatory. I think that there were no operative pleadings or papers in the superior court upon which the verdict and judgment in question could be founded, no matter what the evidence in such court might have been. The superior court did not err in holding that the verdict and judgment in such court was void for this reason and in vacating such verdict and the judgment based thereon. Wofford v. Vandiver, supra.