Wisenbaker v. Wisenbaker

Full title: WISENBAKER et al. v. WISENBAKER et al

Court: Supreme Court of Georgia

Date published: May 6, 1971

182 S.E.2d 114 (Ga. 1971)

182 S.E.2d 114

Opinion

26473.

ARGUED APRIL 13, 1971.

DECIDED MAY 6, 1971. REHEARING DENIED MAY 20, 1971.

Cancellation. Lowndes Superior Court. Before Judge Franklin.

Burch Boswell, John S. Boswell, Sr., for appellants.

Coleman, Blackburn, Kitchens Bright, Oris D. Blackburn, for appellees.

UNDERCOFLER, Justice.

This appeal is from the grant of a motion to dismiss. It appears from the order that the trial court in passing upon the motion considered certain depositions. The trial court was authorized to consider this evidence as shown by written stipulation of counsel dated February 19, 1971. We conclude, therefore, the motion to dismiss was treated as a motion for summary judgment. Code Ann. § 81A-112 (b) (Ga. L. 1966, pp. 609, 622; 1967, pp. 226, 231; 1968, pp. 1104, 1106).

The notice of appeal directs that the transcript of evidence shall not be transmitted to this court but the evidence and proceedings will be filed in narrative form. A narrative has not been submitted. Code Ann. § 6-805 (i) (Ga. L. 1965, pp. 18, 24). Without the evidence this court is unable to pass upon the questions presented. Webb v. Jones, 221 Ga. 754 (4) ( 146 S.E.2d 910).

Judgment affirmed. All the Justices concur.

ARGUED APRIL 13, 1971 — DECIDED MAY 6, 1971 — REHEARING DENIED MAY 20, 1971.