190 S.E.2d 87 | Ga. Ct. App. | 1972
ABEL
v.
J. H. HARVEY COMPANY, INC.
Court of Appeals of Georgia.
Walker, Yancey & Gupton, Fred H. Walker, for appellant.
Young, Young & Ellerbee, F. Thomas Young, for appellee.
DEEN, Judge.
In this personal injury action the trial court granted the defendant's motion for summary judgment on November 23, 1971. A notice of appeal was filed December 22, 1971, which stated: "Transcript of evidence and proceedings will be filed for inclusion in the record on appeal." The appeal was docketed in this court on February 18, 1972, 38 days beyond the time allowed under Code Ann. § 6-808, which resulted in its being put on a later calendar call in this court than would have eventuated if it had been timely filed. The delay as stated in the certificate of the clerk was due to the fact that there was no transcript, which was not discovered until February 17. It must therefore be charged against the appellant as it appears to have been due entirely to the erroneous designation of a transcript. This case is accordingly controlled by Kennedy v. Savannah News Press, Inc., 122 Ga. App. 175 (176 SE2d 540), where under a substantially identical state of facts, the appeal was dismissed.
Our Rule 11, adding a requirement that objection to late filing must first be raised in the trial court, was not in effect at the time the case was docketed in this court and accordingly cannot be applied against the appellee movant.
Appeal dismissed. Eberhardt, P. J., and Clark, J., concur.
