
    KEYS v. BELL.
    Where a trial judge inadvertently approved as a brief of evidence a document , presented as such, but which was .palpably no brief at all, and subsequently passed an order in effect revoking the approval formerly entered, and in terms overruling, for want of a lawful brief of evidence, the motion for a new trial, in connection with which such document had been filed, the judgment will not he disturbed by this court.
    Argued July 24,
    —Decided August 9, 1900.
    Probate of will — appeal. Before Judge Candler. Whitfield superior court. December 22, 1899.
    
      Mann & Terry, for plaintiff in error.
    
      R. J. & J. McCamy, contra.
   Lewis, J.

This was a proceeding by S. E. Bell to probate in solemn form the will of Elizabeth A. Bell. To this application Mrs. Mary D. Keys filed her caveat, and objected to the admission of the will to record, alleging that the instrument was not the will of Elizabeth A. Bell, because she did not execute the same freely and voluntarily, but was moved thereto by the undue influence exerted over her by her husband, S. E. Bell. Another ground of caveat was, that the testatrix was misled by the legatees mentioned in the will, and especially by S. E. Bell, who with Alice and Florence Bell led the said Elizabeth Bell to believe that caveatrix was responsible for a certain lawsuit brought against Thomas Caldwell, father of testatrix, when in truth and in fact caveatrix had nothing to do with the bringing of such suit. And further, that testatrix was for many years an invalid and in very feeble health, and was thereby made more susceptible to the undue influence of S. E., Alice, and Florence Bell. After the introduction of the evidence on the issue formed on this caveat, the court directed a verdict for the propounder, which was accordingly rendered; whereupon caveatrix moved for'a new trial, upon the general grounds that the verdict was contrary to law and evidence, and upon the further ground that the court erred in directing a verdict for the propounder. To the judgment of the court overruling her motion for a new trial the caveatrix excepts.

The record discloses that the movant made no attempt whatever to prepare a brief of this evidence. On the contrary it appears that what purported to be a brief of the evidence was nothing but the report of the testimony taken down by the stenographer on the trial of the case, and consisted of questions and answers in the exact language and order in which they were asked and answered,.and covered a space in the record perhaps ten times larger than was necessary. The j udge below approved this evidence when it was presented to him, but when he passed upon the application for a new trial, he granted the following-order: “The brief of evidence as approved by me on Dec. 2, 1899, was presented to me and approved without any examination. Upon taking up the motion to pass upon it, I find that no effort has been made whatever to comply with the rule of court as to briefing the evidence, and, there being no compliance with the rule, I refuse the motion for new trial and deny the same, there being no motion to dismiss.” We think the judge was clearly right in granting this -order. Indeed, the record in its present shape, even without such an action on the part of the judge belo'w, could not be considered by this court, for the errors complained of necessarily involve, as above seen, an investigation into the facts of the case; and there being an utter failure to prepare any brief of evidence at all, the grounds-of error could not be considered.

Judgment affirmed.

All the Justices concurring.  