Lead Opinion
Thеse consolidated appeals are before the Court from an order dismissing appellants’ notices of аppeal in an action to reform a deed, for a constructive trust, and injunctive relief. Finding no reversible error, we affirm.
Appellee Sarah Griffin brought suit against her daughter-in-law, appellant Jennie Joyner, both individually and as representative of the estate of Griffin’s deceased son, Ralph Edward Joyner, to reform a deed to certain real рroperty which had been jointly titled in the Joyners. Griffin claimed that although she provided the funds to purchase the property, her name had not been placed on the deed, as the Joyners had promised. Thereafter, appellant Melonie Dale Durden, daughter of the decedent and heir-at-law, was named as a necessary party-defendant and was served with the complaint. Durden made no appearance at trial and was unrepresented. A verdict was directed against her at the conclusion of the evidence.
A jury returned a verdict for Griffin and against all defendants, awarding her title to the real property in dispute. Notices of appeal were timely filed on June 30, 1997, by Durden and Joyner, both individually and in her capacity as administratrix of Ralph’s estate. Those notices specified that a transcript of evidence would be filed for inclusion in the record on appeal.
After the expiration of the 30-day time in which to file the transcript under OCGA § 5-6-42, plaintiff filed a “motion to dismiss and
1. It is jointly asserted by all defendants that the trial court erred in dismissing their appeals.
Plаintiff supported her motion to dismiss with an affidavit from the court reporter that as of the thirty-fourth day following the filing of the notice of appeal, defendants had neither requested preparation of the transcript nor paid a fеe for such services, although they had specified in their notices of appeal that a transcript of evidence would be filed for inclusion in the record. Defendants offered no evidence in opposition to plaintiffs motion.
The court found the defendants’ conduct in failing to order a transcript until four days after the date it was due to be filed, or to make financial arrangements with the court reporter until thе statutory time had expired, both unreasonable and inexcusable, and that the delay was caused by the parties rеsponsible for its preparation. A trial court’s findings in this regard must be affirmed, absent an abuse of discretion. Sellers v. Nodvin,
The defendants in this case had done nothing to cause the transcript to be prepared, as was their obligation under OCGA § 5-6-42. They had neither ordered the transcript, nor sought an extension of time in which to file it until they faced a motion to dismiss. Under the circumstances, it cannot be said that dismissal of the аppeals constituted an abuse of the court’s discretion. Id.
2. Because our ruling in Division 1 is dispositive of these apрeals, we do not reach Durden’s remaining enumeration of error.
Judgment affirmed.
Notes
A transcript was finally filed on November 14, 1997, 167 days after the notices of appeal had been filed.
Defendants attempted to introduce their own affidavit at the heаring to the effect that the transcript would not have been filed within the statutory time even if it had been timely requested because of the court reporter’s heavy workload. The trial court determined that their affidavit was untimely under OCGA § 9-11-6 (d), and refusеd to consider it. While this ruling is not enumerated as error on appeal, we note that consideration of an untimely аffidavit is within the trial court’s discretion. Liberty Nat. Life Ins. Co. v. Houk,
Concurrence Opinion
concurring.
I fully agree with the majority’s opinion and conclusion. I also agree with the majority that the resolution of the issue discussed in Division 1 renders it unnecessary for us to resolve Ms. Durden’s remaining enumeration of error. However, because, in a vacuum, that enumeration may have had merit, I will address it briefly.
With regard to Case No. S98A0907, involving appеllant Melonie Durden, the trial court, in addition to dismissing for the untimely transcript, dismissed Ms. Durden’s appeal after finding that she was in defаult. At the hearing on the motion to dismiss, Ms. Durden asserted that she had filed a timely answer, but the trial court refused her request to take judicial notice thereof. The record shows that Ms. Durden did file a timely answer. Whether a trial court will take judicial notice of its own records in another case is a matter which rests within its discretion. Petkas v. Grizzard, 252 Ga.104 (
However, as stated, the majority is absolutely correct with regard to the untimely transcript. Therefore, the error in failing to take judicial notice of Ms. Durden’s answer is hot of any moment in this particular case.
I am authorized to state that Justice Hunstein joins in this opinion.