ON MOTION FOR REHEARING. The plaintiff in error in a motion for rehearing and a supplement thereto, insists that in affirming the grant of a new trial this court has overlooked certain authoritative utterances which, in the opinion of the movant, would demand a contrary judgment. Movant's contentions are as follows: (1) that there appears no valid motion for new trial in that there is no brief of the evidence; (2) that the certificate of the judge verifying the recitals in the bill of exceptions, among them being that certain portions of the record are material to an understanding of the errors complained of, is equivalent to a certification that no brief of the evidence had been presented and filed; (3) that there is no denial by the respondent to the motion to dismiss the motion for new trial, of the allegation in that motion that no brief of evidence had been filed, which amounts to an admission on the hearing of the motion for new trial that no brief of evidence had been filed.
In reply to the first proposition, it is sufficient to say that he assumes as true that no brief of the evidence had been filed. This assumption is necessarily predicated on the fact that it does not appear from the record that any brief of the evidence was filed or the statement of counsel for defendant in error. This is not an answer to the ruling heretofore made by this court that, since the trial court has sustained the motion for new trial and granted a new trial, it must appear affirmatively from the record that no brief of the evidence was filed. The long line of decision cited in the motion for rehearing are to the effect that a brief of the evidence is essential to a valid motion for new trial. The ruling here made that it does not affirmatively appear from the record that no brief of evidence was filed, is not in conflict with the decisions which hold that the filing of a brief of evidence is essential to the validity of a motion for new trial.
In reply to the second proposition, that the certificate of the judge to the bill of exceptions, which recites certain portions of the record as material to a determination of the errors complained of, and which omits as a specification a brief of the evidence, amounts to a verification by him that no brief of the evidence was *Page 859 filed, it is sufficient to say that, if he certifies to anything in this connection, he merely certifies affirmatively that the portions of the record specified are material to a clear understanding of the errors complained of. This could be a truism whether or not a brief of the evidence had been filed.
In reply to the third proposition, that the failure of the respondent to the motion to dismiss the motion for new trial to deny the allegation in the motion to dismiss that no brief of the evidence had been filed amounts to an admission of that allegation, it is sufficient to state that it does not appear affirmatively from the record that the respondent to the motion to dismiss failed to deny the allegations in this motion. It was ruled by this court in this case that, since the court sustained the motion for new trial, it must affirmatively appear that this motion was invalid by its affirmatively appearing that no brief of evidence was filed. If the failure of the respondent to reply to the motion to dismiss amounts to a consent to the truth of the allegations therein, it must necessarily, under this ruling of the court, affirmatively appear that the respondent failed to deny the allegations in the motion to dismiss. The following cases which hold that where a motion is made in the appellate court to dismiss the writ of error on mere factual grounds the alleged facts are taken as true on the failure of the respondent to the motion to deny these allegations, are not controlling as respects the third proposition of the plaintiff in error: Kemp v. Colonial Trust Co., 147 Ga. 605 (95 S.E. 7); Clements v. Wilkerson, 151 Ga. 467 (107 S.E. 47); Dill v. Taylor,160 Ga. 234 (127 S.E. 737); Brooks v. Bishop, 174 Ga. 254 (162 S.E. 781). On the authority of these decisions there might be some merit in the contention of the plaintiff in error if it appeared affirmatively from the record in this case that the respondent in the motion to dismiss the motion for new trial had failed to make any reply to the motion to dismiss.
Whether the admission of counsel in their briefs as to the state of the record in the lower court may be considered had been disposed of in the original opinion as written.
It is well settled as a rule of appellate practice that the record must affirmatively show error and that the court will search the record for the purpose of affirming a judgment. The court will look through the entire record, and if the record demands an *Page 860 affirmance of the judgment it will be affirmed, irrespective of the agreements and contentions of counsel. Under the application of these two rules a judgment of affirmance is demanded. There is no merit in the motion for rehearing, or in the supplement thereto.
With the above added, on motion for rehearing, as a supplement to the opinion already rendered in this case, the motion for rehearing is denied.
Rehearing denied. Felton, J., concurs.