322 S.E.2d 528 | Ga. Ct. App. | 1984
This case involves the dismissal of an appeal by the trial court under the authority granted in OCGA § 5-6-48 (formerly Code Ann. § 6-809 as- amended) after notice and an opportunity for a hearing “where there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of the party to pay costs in the trial court.” A summary judgment had been granted in the case sub judice in an order dated December 29, 1982, filed for record January 3, 1983, and the notice of appeal was thereafter filed on January 25, 1983. The defendants thereafter on August 2, 1983, filed a motion to dismiss the appeal, citing the appropriate statute (OCGA § 5-6-48) contending therein that the plaintiff (appellant) and been billed for
The motion to dismiss the appeal came on for hearing December 7, 1983, and on January 17, 1984, the appeal was dismissed, the trial court citing in its order the substance of the above with reference to the appeal and the further fact that on December 6, 1983, plaintiff finally paid the cost in the action but determined “that the delay in paying costs from August 2, 1983 through December 6, 1983 [126 days], is unreasonable and chargeable to the plaintiff”; also the “unreasonable delay is inexcusable,” and has resulted in a delay of consideration of the case by the Court of Appeals. Plaintiff appeals. Held:
The contention of the defendants was that the record was prepared and ready for transmission on June 29, 1983, and that the plaintiff had failed to pay the costs as of August 2, 1983 (a period of 34 days). However, the trial court granted the motion based upon the fact that there was a delay in paying the cost from August 2, 1983, to December 6, 1983, a period of 126 days, the court finding that this period was unreasonable and chargeable to the plaintiff and the unreasonable delay was inexcusable. The plaintiff contends, however, that the clerk had been restrained (“an injunction”) from transmitting the record on appeal, hence the trial court erred in dismissing the appeal for this reason as well as others including that the trial court failed to find the delay from June 29, 1983, until August 2, 1983, was unreasonable and inexcusable and occasioned by the plaintiff in delaying this matter. However, under the entire status of the case sub judice the record clearly shows an unreasonable and inexcusable delay. The restraining order did not prevent the payment of costs al
Judgment affirmed.