1.(a) Where the bill of exceptions is tendered to the clerk of the court and so marked by him within 30 days of the order appealed from, it is not necessaiy under Code Ann. § 6-902, as amended, that the certificate of the trial judge affirmatively recite that he was temporarily absent from the circuit for the reason that the clerk of court, who is without authority to accept a tender unless the judge is unavailable as provided in the statute, is presumed to have performed his official duty. Brantley v. Thompson, 216 Ga. 164 (115 SE2d 533), reversing 101 Ga. App. 257 (114 SE2d 60), and, sub silentio, overruling State Highway Dept. v. Strange, 100 Ga. App. 649 (112 SE2d 285), State Highway Dept. v. Collins, 100 Ga. App. 755 (112 SE2d 626), and Moss v. Moss, 101 Ga. App. 237 (113 SE2d 415). The fact that the bill of exceptions here shows the trial judge was acting pro hac vice and actually resided out of the county supports this conclusion.
(b) The fact that the clerk marked the bill of exceptions “Tendered. This July 25th, 1962,” without noting the hour of tender does not require a dismissal of the writ of error even though Code Ann. § 6-902, as amended, specifies that the clerk shall mark “the date and hour of tender.” (Emphasis supplied). See Brantley v. Thompson, 216 Ga. 164, supra, where the clerk entered “Tendered, September 11, 1959.”
The motion to dismiss the bill of exceptions is denied.
2. Where a motion for new trial is dismissed because of failure to comply with Code Ann. §§ 24-3364, 70-301, and Rule 8 of the Civil Court of Fulton County, plaintiff in error admitting that no written notice of his intention to present the brief of evidence for approval was given defendant in error, and nothing appears in the record to indicate that the defendant in error received the full benefit of any of these rules or waived them (Campbell v. Allen, 208 Ga. 274 (1), 66 SE2d 226), this court is bound to affirm the dismissal of the motion for new trial. King v. Skinner, 101 Ga. App. 102 (2, 3) (112 SE2d 789).
3. Plaintiff in error also excepted to the order of the trial judge sustaining special demurrers to and striking substantive parts of his answer. Where this is the procedural posture of the case, a consideration of the brief of evidence has been held *789necessary to determine whether the error was harmless since a verdict for the plaintiff might have been demanded. Whitner v. Whitner, 207 Ga. 97 (60 SE2d 464), modifying 80 Ga. App. 831 (67 SE2d 458), Daniel v. Atlanta Newspapers, Inc., 89 Ga. App. 895 (4), 900 (81 SE2d 547) and Georgia Machinery Co. v. Auburn Machine Works, 103 Ga. App. 574 (120 SE2d 28) present precedents substantially on all fours.1 See Gaulding v. Courts, 90 Ga. App. 472 (3), 475 (83 SE2d 288); Welfare Finance Co. v. Corbin, 91 Ga. App. 485 (85 SE2d 819). Since there is no brief of the evidence here, the judgment must be
Decided October 17, 1962 Rehearing denied October 25, 1962. Miles B. Sams, for plaintiff in error. Charles W. Bergman, contra.Affirmed.
Carlisle, P. J., and Bussell, J., concur.This result has been said to be in conflict with the remedial act of 1947 (Ga. L. 1947, p. 298; Code Ann. § 70-301.1) (see Stevens v. Wright Contracting Co., 92 Ga. App. 373, 384-5, 88 SE2d 511) and has been uniformly criticized by writers as ignoring the purpose of the legislation.
Leverett, Hall & Christopher, Ga. Procedure & Practice, § 22-7, p. 509; Willcerson, Some Recent Results of Legislative Changes in Appellate Procedure, 20 Ga. B. J. 38, 40 (1957); Shulman & Jackson, Practice & Procedure, 3 Mercer L. Rev. 123, 144-5 (1951); Case note, 13 Ga. B. J. 337 (1951), but we are required to follow the Supreme Court in Whitner.