Opinion
21232.
ARGUED MAY 9, 1961.
DECIDED JULY 10, 1961.
Habeas corpus. Fulton Superior Court. Before Judge Tanksley.
Paul Webb, Solicitor-General, John I. Kelley, Solicitor, Eugene L. Tiller, Hinson McAuliffe, for plaintiff in error.
Ben S. Atkins, Dorothy D. Atkins, contra.
The bill of exceptions recites that the parties entered into a stipulation and agreed that "copies of all orders, sentences, affidavits and warrants" in the cause be admitted in evidence. After naming the documents admitted, it is recited that "Plaintiff in error attaches hereto, as material to a clear understanding of the error hereinafter complained of, the aforesaid papers . . ." Following the certificate of the trial judge to the bill of exceptions, seven pages are attached, which purport to be photostatic copies of the documentary evidence. Held:
Where, as in the present case, the documentary evidence essential to a determination of the error complained of is not incorporated in the bill of exceptions, or attached as an exhibit and properly identified by the trial judge, or embodied in an approved transcript of the evidence, it has not been brought to this court in the manner prescribed by law, and can not be considered as evidence. A consideration of the evidence is essential to a determination of the assignment of error in the present case; and since none of the documentary evidence material to the error complained of is lawfully before this court, the respondent has failed to carry the burden which "is upon one asserting error to show it affirmatively by the record." Barringer v. Porter, 211 Ga. 20 ( 83 S.E.2d 603), and citations. See also Reid v. Reid, 43 Ga. 175; Colquitt v. Solomon, 61 Ga. 492; Hancock v. Perkins Bro., 68 Ga. 830; Roberts v. City of Cairo, 133 Ga. 642 ( 66 S.E. 938); Jones v. Wadley, 145 Ga. 569 ( 89 S.E. 681); Waldrip v. Slagle, 161 Ga. 464 ( 131 S.E. 53); Dukes v. Balkcom, 212 Ga. 300, 302 ( 92 S.E.2d 18).
Judgment affirmed. All the Justices concur.