Thеse appeals challenge the trial court’s dismissal of Crown Diamond Company’s (“Crown”) appeal of a judgment in favor of N. Y. Diamond Corporation (“N. Y. Diamond”). In Case No. A99A2346, Crown, appeals from the trial court’s order, filed December 18, 1998, dismissing Crown’s appeal of the judgment in favor of N. Y. Diamond and also authorizing the clerk to release a posted bond. Crown filed its notice of appeal from this order on Dеcember 23, 1998.
On January 28, 1999, the trial court issued another order also dismissing this same appeal, but this time directing that the bond would not be released pending disposition of Crown’s extraordinary motion for new trial. Crown filed a notice of appeal from this order on February 10, 1999, and upon docketing in this court, the appeal was assigned Case No. A99A2347. 1
Even though the notices of appeal in both cases are from the triаl court’s orders dismissing the same appeal, they were forwarded to this court as two separate cases. Because both cases concern the dismissal of the same appeal and thе parties have filed combined briefs and enumeration of error for both cases, we will consolidate them for disposition.
Crown contends the trial court erred by dismissing its appeal *675 because the delay in filing a transcript of the April 16 hearing was neither unreasonable nor inexcusable. For the reasons stated below, we disagree.
The dismissed appeal concerns a judgment in favor of N. Y. Diamond that was entered on April 29, 1998. Crown filed its notice of appeal from that judgment on May 8, 1998. In addition to identifying the judgment appealed from and the jurisdictional basis for bringing the appeal to this court, the notice of appeal directed the clerk to omit nothing from the record on appeal and stated that a;“[t]ranscript of evidence and proceedings will be filed for inclusion in the record on appеal.” Crown, however, did nothing to arrange for the preparation of the transcript of a hearing that was held on April 16, 1998.
In August 1998, Crown’s attorney became concerned about the status of the record and instructed a paralegal to call the Fulton State Court appeals clerk to check on it. According to the paralegal, the appeals clerk told her they were still compiling the record. In September, the lawyer again asked his paralegal to contact the clerk’s office about the record on appeal, and she was informed that the clerk’s office had everything nеeded to prepare the record for transmittal to the Court of Appeals and that the delay resulted solely from a lack of staffing in the clerk’s office.
Crown’s counsel states that on November 30, 1998, hе learned for the first time that the reason for the delay in transmitting the record to the Court of Appeals was his failure to order a transcript of the April 16, 1998 hearing. The next day, he “requested that the court reporter prepare and file a transcript from that hearing,” and he paid the costs of the transcript.
On December 10, 1998, N. Y. Diamond filed a motion to dismiss the appeal because of Crown’s inexcusable and unreasonable delay in filing the transcript. The transcript was finally filed that same day. After Crown responded to the motion, the trial court held a hearing. At the conclusion of the hearing, the court found the delay was caused by Crown’s unreasonable and inexcusable delay in filing the transcript of the proceedings and granted N. Y. Diamond’s motion to dismiss the appeal. A written order dismissing the appeal was filed Deсember 18, 1998.
Case No. A99A2346
1.
A trial court is authorized to dismiss an appeal for failure to file the transcript when the delay caused by the failure was unreasonable, the unreasonable delay was inexcusable, and it was сaused by the party responsible for filing the transcript. OCGA § 5-6-48 (c);
Baker v. Southern R. Co.,
2. Under our law, a party filing a notice of appeal must “state whether or not any transcript of evidence [or] proceedings is to be transmitted as a part of the record on appeal.” OCGA § 5-6-37. When a transcript is to become part of the record on appeal, thе appellant must have the transcript prepared at its expense and have it filed to be part of the record on appeal within 30 days after the notice of appeal was filed. OCGA §§ 5-6-41 (с); 5-6-42. If the transcript cannot be filed within 30 days, the appellant must request an extension of time under the procedures stated in OCGA § 5-6-39 to file the transcript. OCGA § 5-6-42. An appellant, however, is responsible for preparing and filing only the transcript, not the record.
Long v. City of Midway,
The clerk of court has the responsibility for preparing the record and, after the transcript is filed, transmitting the record on appeal, i.e., the record аnd transcript, to the appellate court. OCGA § 5-6-43 (a);
Long,
supra,
While the failure of Crown’s counsel and the clerk’s office to differentiate between the record, the preparation and filing of the transcript of evidence and proceedings, and the record on appeal may have contributed to Crown’s failure to discover its failure to order the transcript, this confusion did not delay filing the transcript. Because we will hold Crown responsible only for the actual delay in forwarding the record caused by its failure to file the transcript, this confusion is not significant in this cаse.
According to the appeals clerk, the record could have been transmitted to this court as early as October 19, 1998, but for Crown’s failure to have the transcript prepared and filed by that date. Although nothing in the record on appeal shows when the record on appeal would have been forwarded to this court after the transcript was finally filed on December 10, 1998, our law requires that the rеcord on appeal be forwarded to the appellate court within five days of filing the transcript. OCGA § 5-6-43 (a). Consequently, Crown’s failure to file the transcript actually delayed the forwarding of the recоrd for several months. We do know that by not having the transcript on file on October 19, 1998, when the record was ready, Crown delayed the *677 forwarding by over 50 days.
Crown did not explain whether for some reason it believed the transcript had bеen prepared and filed or whether Crown simply forgot that it had designated that a transcript of the evidence and proceedings would be included in the record on appeal. The record shows, however, that Crown’s counsel “simply forgot to order the transcript” because the hearing “had nothing to do with the subjects on appeal.” 2
On appeal, Crown argues that the hearing was insignificant and minor. Whether it was necessary to make the transcript of this hearing part of the record on appeal, however, was Crown’s decision. Nothing required Crown to make the transcript of this allegedly insignificant, minor hеaring part of the record on appeal. Having elected to make the transcript part of the record on appeal, Crown was obligated to have the transcript prepared and filed or to file an amended notice of appeal changing its election. Crown did neither. It is not the clerk of court’s responsibility to go beyond the designation and determine whether a transcript is necessary.
Boveland v. Young Women’s Christian Assn. &c.,
3. The trial court’s initial determination is . whether the delay was unreasonable.
Central of Ga. R. Co. v. DEC Assoc.,
4. The next issue is whether the delay was inexcusable. “The ordinary signification appliеd to the word ‘inexcusable’ is that the conduct by act or omission was ‘not excusable; incapable of being justified.’ Webster’s Encyclopedic Unabridged Dictionary of the English Language (1989).”
Jackson v. Beech Aircraft Corp.,
This is not a case in which the trial court based its findings mеrely upon the failure of the appellant to request an extension of time in which to file the transcript. See
Dalton v. Vo,
5. Therefore, under the totality of the circumstances, the trial court did not abuse its discretion by dismissing the appeal in Case No. A99A2346 based on its conclusion that Crown caused a substantial delay in the ultimate docketing of this appeal so as to render it stale.
Jackson,
supra,
Case No. A99A2347
6. In view of our disposition of the issues in Case No. A99A2346, Case No. A99A2347, which concerns the same dismissal of the same underlying appeal, is moot.
Judgment affirmed in Case No. A99A2346. Appeal dismissed in Case No. A99A2347.