Hightower v. Flanders 69 Ga. 772

Hightower vs. Flanders.

1. Where there is no motion for new trial in the court below, but the case is brought directly to this court, the evidence should be brought up in the bill of exceptions. It should either be embodied in the bill of exceptions and precede the judge’s certificate, or, if attached in the form of exhibits, it should be identified by the signature of the presiding judge.

(a.) Exception was taken to the sustaining of an affidavit of illegality. The bill of exceptions referred to the evidence and the record before the court below as being attached thereto in the form of exhibits A, B, C and D. When filed in the clerk’s office of the Supreme Court, no such exhibits were attached to the bill of exceptions, but the clerk below had certified as the record what appeared to be these exhibits detached from the bill of exceptions. This appeared from the lettering, the handwriting and pin holes in the detached exhibits corresponding with like marks in the bill of exceptions. The court intimated that they would allow the exhibits to be re-attached, but announced that it would be useless, as they were not properly identified.

2. Where an affidavit of illegality was filed to an execution issued on the judgment in a bail trover proceeding, and exception was taken to the judgment thereon, the entire record in the bail trover case, including the declaration process, bail process, etc., does not properly come to this court as a part of the record in the illegality case. If used in evidence, such papers should be brought üp in the bill of exceptions.

December 16, 1882.