Opinion
18660.
ARGUED JULY 13, 1954.
DECIDED SEPTEMBER 13, 1954.
Injunction. Before Judge Shaw. Fulton Superior Court. March 27, 1954.
J. Ralph McClelland, Jr., John L. Westmoreland, John L. Westmoreland, Jr., for plaintiffs in error.
Powell, Goldstein, Frazer Murphy, Elliott Goldstein, C. B. Rogers, contra.
1. The bill of exceptions complains only of the refusal of the trial judge to grant a temporary injunction. Where affidavits are submitted on the hearing of such a cause, they should be incorporated in the bill of exceptions to review the judgment complained of, or be attached as exhibits thereto, duly and properly identified by the trial judge, or be embodied in an approved brief or transcript of the evidence and brought up as a part of the record. Where, as here, neither method is adopted, but copies of affidavits are transmitted by the clerk as a part of the record, such affidavits have not been brought to this court in the manner prescribed by law, and consequently cannot be considered as evidence.
2. The burden is upon one asserting error to show it affirmatively by the record; and where, as here, the only assignment of error cannot be determined without a consideration of the evidence, and it appears that none of the evidence material to a consideration of the error complained of is lawfully before this court, we will assume that the judgment is correct and affirm it. Ga. L. 1953, Nov.-Dec. Sess., p. 440; Attaway v. Duncan, 206 Ga. 230 ( 56 S.E.2d 269); Blackwell v. Farrar, 208 Ga. 757 ( 69 S.E.2d 574); Cornett v. Justice, 209 Ga. 375 ( 72 S.E.2d 724).
Judgment affirmed. All the Justices concur.