In this case there was no trial or transcript of trial proceedings. The trial court granted a summary judgment. A notice of appeal was timely filed on June 26, 1975.
The Appellate Practice Act provides: "Where no transcript of evidence and proceedings is to be sent up, the clerk shall prepare and transmit the record within twenty days after the date of filing of the notice of appeal." Code Ann. 6-808 (a).
Under the Appellate Practice Act, the dismissal of an appeal is not mandatory except for the three specific instances contained in the above section. All three relate to dismissals by the appellate courts. The provision authorizing the trial court to dismiss an appeal specifies that two elements must be present: One is that the delay was unreasonable and the other is that the unreasonable delay was inexcusable. In passing upon these issues, the trial court has discretion; however, it is a legal discretion which is subject to review in the appellate courts. See Gilman Paper Co. v. James, 235 Ga. 348 (219 SE2d 447) (1975)
. In this case the costs were not paid nor a pauper's affidavit filed with the clerk until twenty-two days following the filing of the notice of appeal. The trial court made a finding that the delay in filing the record was inexcusable and was caused by failure to pay costs or file a pauper's affidavit. No finding was made that the two-day delay was unreasonable, and we therefore hold that it was error to dismiss the appeal.
In considering the question of unreasonable delay, it should be remembered that the time provided for filing the transcript or record is not jurisdictional, but merely a means of avoiding unreasonable delay so that the case can be presented on the earliest possible calendar in the appellate courts.
We therefore answer the certified question in the negative and direct the Court of Appeals to reverse the dismissal of the appeal.
Carlisle & Carlisle, Ralph E. Carlisle, for appellant.