Opinion
26072.
ARGUED SEPTEMBER 17, 1970.
DECIDED SEPTEMBER 24, 1970.
Injunction. Fulton Superior Court. Before Judge Emeritus Moore.
J. Sidney Lanier, for appellant.
Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Marion O. Gordon, Charles B. Merrell, Assistant Attorneys General, for appellees.
The plaintiff filed a petition in which he sought to enjoin the Department of Public Safety and named officers thereof from revoking his automobile operator's permit after his alleged refusal to submit to a breath test to determine sobriety. After hearing, the court dismissed the injunction and the plaintiff appealed. Held:
1. The judgment of the trial court did not pass upon the merits of any defense filed by the defendants and must be construed as one dissolving a temporary restraining order and refusing a temporary injunction.
2. While, where there is no transcript of the evidence adduced upon a hearing, counsel for both sides may stipulate the facts and upon approval of such stipulation by the trial court have the same transmitted to this court (Ga. L. 1965, p. 18; Code Ann. § 6-805 (i)), such approved stipulation must be transmitted by the clerk of the trial court as other transcripts are transmitted. There is no authority for counsel to file such a stipulation in this court, and the effort of counsel for the appellant to file such stipulation in this court is a nullity.
3. Where as in the present case there is no transcript of the evidence adduced before the trial court and the judgment does not disclose if in fact evidence other than sworn pleadings was considered, it cannot be ruled that the trial court erred in dissolving the temporary restraining order and refusing a temporary injunction. See Ward v. National Dairy Products Co., 224 Ga. 241 (2) ( 161 S.E.2d 305).
4. In view of the affidavit of counsel for the appellees and counter-affidavit of counsel for the appellant, it is directed that the purported stipulation of the evidence as well as the affidavits of counsel be transmitted to the trial judge for whatever action is deemed appropriate.
Judgment affirmed with direction. All the Justices concur.