Garrett v. Heaton

Annotate this Case

131 Ga. App. 155 (1974)

205 S.E.2d 718



Court of Appeals of Georgia.

Submitted January 11, 1974.

Decided March 5, 1974.

Adams, Ellard & Frankum, Stephen D. Frankum, for appellants.

Oliver & Oliver, Robert F. Oliver, for appellee.


Hugh Dorsey Heaton, as next friend of Douglas Hugh Heaton, brought a tort action against Herman T. Garrett, Jr., and Herman T. Garrett, Sr., seeking recovery for injuries allegedly received by Douglas Heaton when he, while riding a motorcycle, collided with an automobile driven by Herman T. Garrett, Jr., and owned by Herman T. Garrett, Sr. The defendants answered and counterclaimed against both Heatons. Defendants' motion for summary judgment as to plaintiff's complaint, based upon the pleadings and the depositions of the parties heretofore taken and filed, was overruled. The trial judge's order shows he considered all the pleadings, depositions and the entire record in the case and that movants relied principally on the deposition of Douglas Heaton and the respondents principally upon the deposition of Frank D. Whitfield. The trial judge determined that there was a genuine issue of material fact to be submitted to the jury and denied the motion, but granted a certificate of review. The defendant filed a notice of appeal, which requested the clerk to omit from the record on appeal the depositions of the following: Hugh Dorsey Heaton, Herman T. Garrett, Jr., Herman T. Garrett, Sr., Frank D. Whitfield, Dr. R. A. Dameron, and Mrs. Lou Latham. Held:

The appellant has the duty to demonstrate error on appeal and without the entire evidence considered on the motion for summary judgment, we must assume that the evidence authorized the judgment of the trial court. Cason v. Upson County Board of Health, 227 Ga. 451, 453 (2) (181 SE2d 487).

Judgment affirmed. Eberhardt, P. J., and Evans, J., concur.