The court did not err in granting a new trial.
DECIDED JULY 6, 1942. REHEARING DENIED JULY 28, 1942. After the rendition of a verdict for the defendant, the plaintiff made a motion for new trial which was afterwards amended. The defendant moved to dismiss the motion for new trial on the ground, as alleged in the motion, that no brief of the evidence had been filed. There is also a recital in this motion to dismiss to the effect that no brief of the evidence was filed. These recitals are nowhere verified by the judge, and it nowhere appears from the record or otherwise than in these recitals in the motion to dismiss that there had not been presented for approval of the judge, or filed, a brief of the evidence. This is no more than a statement of counsel that no brief of the evidence had been filed. This, of course, is not such a verification of the record, or of what transpired before the court, as is required by law. In Owen v. Groves,145 Ga. 287 (4) (88 S.E. 964), it was held: "The recital of facts as the basis of a motion for a new trial is not proof in itself of the existence of those facts, in the absence of a distinct and direct allegation that the facts enumerated actually existed." To the same effect see Durrence v. Groover, *Page 854 160 Ga. 680 (2) (129 S.E. 29). The verification by the judge of the grounds of the motion for new trial is a legal verification of the facts which are alleged as grounds of error in the motion.
There therefore appears no establishment of the existence of the fact alleged as a ground on which is based the motion to dismiss the motion for new trial. The record of this case, as it here appears in this court, contains no brief of the evidence, and no brief of the evidence is recited in the specifications in the bill of exceptions. It does not appear from the record that the court erred in overruling the motion to dismiss the motion for new trial, assuming that the court passed on this motion. It is recited in the bill of exceptions that the court passed no order on the motion to dismiss the motion for new trial. The only order or judgment of the court was one expressly granting a new trial. While it is contended by the defendant, the plaintiff in error, that this judgment amounted to a judgment overruling the motion to dismiss the motion for new trial, this judgment by its express terms merely grants a new trial, and neither therein nor elsewhere does it appear that the court in terms rendered any judgment or order on the motion to dismiss the motion for new trial.
Whether or not it can be said that the judge, in passing on the motion for new trial and granting a new trial, necessarily overruled the motion to dismiss the motion for new trial, it appears that the only judgment which the judge rendered in express terms was the judgment granting a new trial. The only question presented for this court's consideration is, did the judge err in granting a new trial?
To the judgment granting to the plaintiff a new trial, which was the only judgment rendered, the defendant excepted "as being contrary to law," and that the "court erred in granting said motion for new trial on each and all of the grounds therein stated." None of the grounds of the motion for new trial as amended presented for determination any question respecting the alleged invalidity of the motion for new trial on the ground that no brief of the evidence had been filed. The record is silent as to whether a brief of the evidence was ever filed. Error must affirmatively appear, and since error does not affirmatively appear, this court can not hold that the trial judge erred in granting a new trial on the ground that no brief of the evidence had been filed. *Page 855
Since the court passed on the motion for new trial and granted a new trial, in the absence of anything to the contrary there is a presumption in favor of the court's jurisdiction to entertain the motion for new trial and to pass on it.
Should there be any error in the judgment granting a new trial to the plaintiff because the verdict which had been rendered for the defendant was as a matter of law demanded, this fact is not shown by the record.
The rules of the Court of Appeals do not contemplate that opposing counsel can agree on what was in the record in the trial court and which does not appear of record in this court. The only rule of the Court of Appeals permitting counsel to agree on the record has reference to the statement of counsel for the defendant in error as to what appears of record in this court. Therefore, any agreement in briefs by counsel for both sides in this case that no brief of evidence was presented or filed in the trial court is not an agreement between counsel as to what appears of record in this court.
The judgment granting a new trial, and overruling the motion to dismiss the motion for new trial, if the record can be construed as showing that the court overruled the motion to dismiss, should be affirmed.
Judgment affirmed. Felton, J., concurs.