In fact, the court reporter did not arrive in court until after the testimony in the case and all the evidence had been completed." (Emphasis supplied.) Held:
1. The rules of practice and procedure that are applicable to the Superior Courts of this State are "the rules which govern practice and procedure of the" State Court of Habersham County. See Section 8 of the Act approved March 24, 1970 (Ga. L. 1970, pp. 679, 681).
2. Both parties announced ready for trial (see Rule 41 of the convention of Judges of the Superior Court adopted December 4, 1936; Code Ann. 24-3341, being substantially the same as Rule 21, 24-3320 in the Code of 1933) apparently without any reservations, and without any determination with reference to whether or not the court reporter was present. And appellant sought no delay or continuance when he discovered the reporter would not be present for an hour and a half, which he could have discovered before announcing ready. Even had appellant made a motion for continuance after announcing ready for trial, there would have been no abuse of discretion in refusing such a motion. See Hunter v. Jones, 36 Ga. App. 816 (2) (138 SE 263); Payne v. Ormond, 44 Ga. 514 (1); Fisher v. State, 93 Ga. 309 (3) (20 SE 329).
HALL, Presiding Judge, concurring specially.
I concur in the judgment but for a different reason than that stated in the majority opinion. In my opinion an attorney has a right to assume that a court reporter will perform his duties under the law. "Each of the judges of the superior and city courts in all circuits where there may be more than one division, whether the same be civil or criminal, shall appoint, and at pleasure remove, a reporter or stenographic reporter for their respective divisions of said superior or city courts of their respective circuits. Such reporter, before entering on the duties of his office, shall be duly sworn, in open court, faithfully to perform all the duties required; and it shall be his duty to attend all sessions of the court for which he is appointed, and when directed by the judge, to exactly and truly record or take stenographic notes of the testimony and proceedings in the case tried, except the argument of the counsel." Code 24-3102. "In all cases, civil or criminal, any party may as a matter of right have the case reported at his own expense." Code Ann. 6-805 (j). See also Code Ann. 24-3105.
The announcement of "ready" meant the attorney was prepared to try his case. He could have assumed that the court reporter would comply with his statutory duty. In this case the trial judge inquired as to the absence of the reporter and discovered that he would not arrive for an hour or an hour and a half. When the court then announced that the trial would proceed without the reporter, it was incumbent upon counsel to move for a postponement until the arrival of the reporter. By failing to so move, he waived his right to insist that the case be reported.