The notice of appeal in this case states the appeal to be “from the judgment and decree entered herein on the 24th day of September, 1968.” Although there is a judgment entered on September 25, 1968, in the record, there is not one which is shown to have been entered on September 24, 1968. Under Ga. L. 1965, pp. 18, 20, as amended (Code Ann. § 6-802), as construed by the Supreme Court and followed by this court prior to the 1968 amendment to Ga. L. 1965, pp. 18, *63329, as amended (Code Ann. § 6-809), this appeal would have had to be dismissed. See Hoover v. State Hwy. Dept., 117 Ga. App. 619 (161 SE2d 371), and cases therein cited. Ga. L. 1968, pp. 1072, 1074 (which was approved on the same date that the Hoover case, supra, was decided) amended Ga. L. 1965, pp. 18, 29 by adding subsection (d) (Code Ann. § 6-809 (d)), which provides, in part, as follows: “Where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding that the notice of appeal fails to specify definitely the judgment appealed from or that the enumeration of errors fails to enumerate clearly the errors sought to be reviewed.” Applying the provisions of Subsection (d), above, it is apparent that the judgment appealed from is that one entered on September 25, 1968.
Judge Deen proposed a special concurrence with which the majority agrees so we make it a part of the opinion with his consent. It is as follows:
“While there is much that is persuasive in the dissents of Judges Pannell and Eberhardt, in my opinion the dismissal route cannot be followed without declaring Code Ann. § 6-809 (d) unconstitutional, and it might be preferable to give the Supreme Court a chance to do that first.
“The plain language of the statute is that where it is apparent from the notice of appeal, the record, and the enumeration of errors in combination, what judgment is designated, that judgment must be taken as the one appealed from. This opens the notice of appeal to extrinsic construction for the first time and puts a burden on the court to examine the orders themselves in determining whether they have been appealed from. It is not, after all, an insupportable burden. As Judge Pannell points out, this involves 4 documents, three ‘entered’ on September 24 and one on September 25. If our only clue is the date, it may be that examination of the record will not be sufficient to make the judgment appealed from apparent. But this is not the only clue. The appeal is from the ‘judgment and *634decree.’ A glance at the orders indicates that only one is called a ‘judgment and decree’ and only one could possibly be termed a judgment and decree. ‘A decree is the judgment of the judge in equitable proceedings upon the facts ascertained, and should be signed by him and entered on the minutes of the court.’ Code § 37-1201. Obviously a return by appraisers is not a decree because it is not ‘the judgment of the judge.’ ‘A decree in equity is the judgment or sentence of a proceeding instituted in that court and no other is necessary.’ Loyd, Perryman & Mills v. Hicks, 31 Ga. 140 (2). It is therefore a final judgment, and neither the pre-trial order or the amendment to the pre-trial order can qualify as a ‘judgment or decree.’ But can the final judgment and decree, which is called ‘Final Judgment and Decree’ in the record be in fact a judgment and decree under the definitions in our law? In this case it can be nothing else. The petition in this suit was filed in equity, and contains no prayer other than for injunction, based upon plaintiff’s contended fact situation that he owned title to land which the defendant was claiming. In the course of the proceedings the parties agreed to submit the matter to arbitration, and the court, by adopting and entering the report of the arbiters, found in favor of the defendant and against the plaintiff’s prayers for injunction. We therefore have an equitable proceeding and a judgment of the judge upon the facts ascertained, signed by him and entered on the minutes of the court. There is only one ‘judgment and decree’ in the record. The conclusion is perfectly apparent and is indubitably inescapable. Only one order is so designated. Only one meets the definition. Only one can be considered.”
Since this equitable action for injunction against trespass was pending in court, and referred to arbitrators by agreement of the parties, it comes under the Judiciary Act of 1799 (Code § 7-224), and not under the Arbitration Act of 1856 (Code §§ 7-201 to 7-223, inclusive), which applies only to cases originating out of court. Culbreth v. Smith, 202 Ga. 102, 103 (42 SE2d 432), and cit. The court did not err in making the award of the arbitrators the judgment of the court, even if the proceedings did not comply literally with the provisions of said *635Act of 1856 (such as delivery of the submission to the arbitrators, appointment of the time and place of the meeting of the arbitrators and notice thereof to plaintiff, and the furnishing of a copy of the award to plaintiff), which Act was not applicable. Tison v. Sellars, 40 Ga. 710. Nor can the plaintiff now be heard to complain of the inclusion by the court, in its orders and judgment, of the provision that the arbitration was to be without the right of appeal, since this provision was stipulated by both parties in the arbitration agreement, which was reached at the pre-trial conference, and not rejected by the plaintiff when given ample opportunity to do so. See Whaley v. Ellis, 86 Ga. App. 790 (72 SE2d 653). The enumerated errors pertaining to the sufficiency of the evidence to support the award, being unsupported in the brief by citation of authority or argument, will not be considered. O’Neal v. Moore, 118 Ga. App. 424 (1a) (164 SE2d 328). Such awards being favored by the courts, the present one—having been made “in conformity to law” and not “vicious or defective for some manifest cause, properly made known to the court,” nor based upon a required “inference of fraud, accident, or mistake in the arbitrators”—must be sustained. Culbreth v. Smith, supra, p. 105, and cit.
The court did not err in its judgment making the award of the arbitrators the judgment of the court.
Judgment affirmed.
Bell, P. J., Jordan, P. J., Hall, Deen, Quillian and Whitman, JJ., concur. Eberhardt and Pannell, JJ., dissent.