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Lawskills.com Georgia Caselaw
BRAMLETT et al. v. SMITH.
26442.
Appellate procedure. Lowndes Superior Court. Before Judge Calhoun.
FELTON, Justice.
The filing of the transcript four months after the expiration of the time allowed by the only extension order applied for and entered, which delay was caused by the appellants, constitutes a stale appeal, which is hereby dismissed, notwithstanding the trial court's refusal to do so.
This attempted appeal is from a judgment entered on July 6, 1970, adjudicating a boundary line dispute and granting injunctive relief in favor of the plaintiff-appellee. The notice of appeal was filed on July 27, 1970, in which it was recited that the transcript of evidence and proceedings at the trial would be filed for inclusion in the record on appeal. On August 6, 1970, the trial judge granted the defendants-appellants an extension of time within which to file a transcript to September 26, 1970, which order further provided: "If the transcript of the evidence has not been filed by the court reporter on or before the date shown above this order will be amended to allow additional time for such transcript to be completed." This order was not entered until October 1, 1970, and was not served on the opposing party until October 3, 1970. The record contains no further orders extending the time for filing a transcript. On January 5, 1971, the plaintiff filed a motion to dismiss the appeal on the ground that the time for the filing of a transcript had expired and none had been filed. On January 13, 1971, the trial judge granted the motion to dismiss, finding that there had been an unreasonable delay in the filing of the transcript, the time allowed having already expired. On January 20, 1971, the defendants filed a motion to set aside the January 13th order on the ground that it was based upon a hearing on January 8th and that they had not been served with notice of said hearing until January 5th, which was less than the 5 days' notice required by Code Ann. 81A-106 (d) (Ga. L. 1966, pp. 609, 617; Ga. L. 1967, pp. 226, 229, 230). On January 25, 1971, the trial judge entered an order vacating his previous order dismissing the appeal and setting a time for another hearing on the motion to dismiss, allowing for the statutory notice. On February 4, 1971, following a hearing, the trial judge entered an order. finding that the transcript had been filed on January 29, 1971, and that the lower court costs through, but not since, the judgment had been paid, and denying the motion to dismiss the appeal. No filing date of the transcript is found in the record other than in the February 4th order. Attached to and made a part of said order is a letter from the court reporter to appellant's counsel, dated January 5, 1971, in which she stated in part as follows: "In my recollection of the case, after the jury came in and before l left the courtroom you approached my desk and told me you were appealing the case. l did not hear further from you until either the latter part of November or first week in December at which time I was reporting in Valdosta and you came up and asked me when l thought I would get the record out, 1 told you then that l bad not started on it, having had no written orders to do so from you, and 1 had not been positive that you wanted me to get out the record. I told you then in December that I would get same out as soon as l could get to it." (Emphasis supplied.) Appellee filed a motion to dismiss the appeal in this court.
The record shows that the appellants obtained an extension of time for the filing of a transcript on August 6, 1970, and neither filed the same with the clerk nor served the opposing party therewith for nearly two months (in October) in violation of the statutory requirement that "The order granting an extension of time shall be promptly filed with the clerk of the trial court, and the party securing it shall serve copies thereof on all other parties in the manner hereinafter prescribed." (Emphasis supplied.) Code Ann. 6-804 (Ga. L. 1965, pp. 18, 21). It further appears that the time allowed under such extension expired on September 26, 1970, that over 2 months thereafter appellants apparently had not even notified the court reporter that they desired to have a transcript made, and that the transcript apparently was not filed until January 29, 1971, over four months after the expiration of the time granted by the trial judge for its filing. The appellants' contention, that they were automatically granted additional time by the provision in the court order granting the extension, to the effect that the order "will be amended" to allow additional time if needed, is not meritorious, because the order granting an extension must be filed (hence, in writing). Code Ann. 6-804; Elliott v. Leathers, 223 Ga. 497, 501 (156 SE2d 440). The record does not show that appellants made any application for an extension within the 50-day period ( Elliott v. Leathers, supra, p. 501), or that any written order granting an extension was ever entered. Under the circumstances referred to, the four months' lapse of time from the expiration of the time allowed for the filing of the transcript and its actual filing, constitutes a stale appeal, as the trial court correctly held in its judgment dismissing the appeal, and this court can enter a dismissal notwithstanding the trial court's subsequent refusal to do so. See Cox Enterprises v. Southland, 226 Ga. 794, 796 (177 SE2d 653). Furthermore, even if it appeared that the appellants had applied for or were granted an extension or extensions of time, this would not excuse them from the consequences of their own unreasonable delay. Id., p. 797.
The transcript not having been filed within the time allowed by Code Ann. 6-806 (Ga. L. 1965, pp. 18, 26), the appeal must be dismissed as stale.
Appeal dismissed. All the Justices concur.
J. Converse Bright, for appellee.
Burch & Boswell, John S. Boswell, Sr., for appellants.
SUBMITTED APRIL 12, 1971 -- DECIDED APRIL 22, 1971 -- REHEARING DENIED MAY 20, 1971
Friday May 22 15:36 EDT


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