CORINTH PUBLICATIONS, INC. v. WESBERRY et al.
23227
Supreme Court of Georgia
JULY 14, 1967
223 Ga. 497
Judgment reversed. All the Justices concur.
DECIDED JULY 14, 1967.
Haas, Holland, Freeman, Levison & Gibert, Hugh W. Gibert, Stanley Fleishman, for appellant.
Arthur K. Bolton, Attorney General, Peyton S. Hawes, Jr., Assistant Attorney General, for appellees.
ELLIOTT v. LEATHERS et al.
24080
Supreme Court of Georgia
JULY 14, 1967
223 Ga. 497
ARGUED JULY 10, 1967—DECIDED JULY 14, 1967.
Hatcher, Meyerson, Oxford & Irvin, Henry M. Hatcher, Jr., for appellant.
Edward D. Wheeler, Herbert Johnson, for appellees.
GRICE, Justice. The dismissal of an appeal in which the transcript was not filed in the trial court within 30 days after filing of the notice of appeal is for review here. From two adverse judgments in the Superior Court of Fulton County, E. S. Elliott had appealed to thе Court of Appeals. That court, in a five to four decision, dismissed his appeal (Elliott v. Leathers, 115 Ga. App. 352 (154 SE2d 694)), and we granted his application for certiorari.
The facts, insofar as necessary to recite for this review, are, in chronological order, those which follow. All dates refer to 1966.
On April 5 the appellant filed his notice of appeal from judgments rendered on March 8.
On May 3 the appellаnt presented to the trial judge, Honorable Durwood T. Pye, the following proposed order: “It appearing that the court reporter will be unable to prepare the record specified in the notice of appeal of appellant . . . in the foregoing case within thirty (30) days after filing of the notice of appеal, upon application of appellant . . . time for filing of the transcript as designated in the notice of appeal is hereby extended for an additional thirty (30) days and until the 8th of June 1966. This . . . day of . . . . . . , 1966.”
On May 4, the day before expiration of 30 days from the filing of the notice of appeal, the trial judge passed an order declining to enter such proposed order for two reasons. The first dealt with a question not material here. The second was that in his opinion the portion of Section 11 of the Appellate Practice Act of 1965 (
On May 6, one day after expiration of such 30 day period, and the day this order declining to grant the requested extension was received by appellant‘s counsel, he filed with the trial court a motion which recited the presentation on May 3 of the proposed order for extension of time and the judge‘s order declining to sign it. The motion then stated that the appellant “moves the court to grant the extension of time for the filing of such transcript under the discretionary power of the court, in particular as set forth in Section 6 of the Rules of Civil Procedure [Appellate Practice?] and shows the court that the failure of the
On May 12 the trial judge entered an order granting an extension of time for filing the transcript. It referred to the previous order of May 4, declining to grant the requested extension for the two reasons therein assigned and stated that such order was entered upon request for the extension as a matter of right, the applicant nоt having invoked any question of discretion. It related further than on May 10 counsel for appellant “presented to the court a motion in reference to an extension of time, invoking the discretion of the court under Section 6 of the . . . [Appellate Practice Act, supra]. This question of discretion, as stated, was not presented by the previous application, but is now presented. It is to be noted that the matter of discretion is entirely different from the matter of extension by right under the above quoted portion of said Act, which the court believes to be unconstitutional. The question of discretion being presented, the court has inquired of the reporter as to thе status of the transcript and the reporter has . . . advised the court in respect thereof . . . the court is of opinion that it should exercise discretion in favor of the granting of a reasonable extension . . . [and that] the proper thing to do is to grant the extension requested. . .” Thereupon, it ordered an extension of 90 days for filing the transcript.
On August 9, within the extension granted, the transcript was filed in the trial court clerk‘s office.
The view which the majority of the Court of Appeals took may be summarized as follows: that appellant‘s counsel timely presented an order for an extension of time which the judge refused to sign; that thereafter counsel abandoned his original application and filed a new one which was too late; that had counsel wished to rely upon his original application and assert his right to have the judge grant an extension under the mandatory provisions of the last sentence of Section 11 of the Appellate Practice Act (
We cannot agree with the views and conclusion of the majority of the Court of Appeals, and deem the dismissal erroneous.
1. As we view it, this entire situation is pervaded and controlled by a provision of the Constitution of this State: “No writ of error shall be dismissed because of delay in transmission of the bill of exceptions and the copy of the record, or either of them, resulting from the default of the clerk or other cause, unless it shall appear that the plaintiff in error or his counsel caused such delay. . .”
It does not appear that the appellant or his counsel caused the failure to file the transcript within thirty days following the filing of the notice of appeal. From what dоes appear the delay was caused by the reporter‘s press of work. The trial judge was satisfied as to this, upon being advised of the facts by the reporter.
In this respect the present case differs decisively from Davis v. Davis, 222 Ga. 579 (151 SE2d 123), where the appeal was dismissed for failure to file the transcript within the time. There, the delay was more than six months, no excuse whatever was offered, and no extension of time was sought. By analogy to an earlier case, we held the appeal to be stale due to laches of the appellant, and dismissed under authority of the Constitutional provision above referred to.
2. The appellant here complied with the procedural requirements of the Appellate Practice Act of 1965, supra, for seeking
Section 6 (
Section 11 (
(a) Presentation of the proposed order was sufficient as an application for extension of time for filing the transcript under Section 6, supra. That section expressly negatives any motion having to be made, and requires filing of only “the order granting an extension.” Also, see Gunnels v. Deavours, 59 Ga. 196 (1).
(b) When, on May 3, counsel for the appellant presented the proposed order for an extension of time for filing the transcript, he was within the 30 day period after filing his notice of appeal on April 5, as required by Section 11, suprа.
Under these facts it was not necessary that appellant obtain the extension within that 30 day period in order to prevent dismissal of his appeal. The Appellate Practice Act of 1965, supra, does not so require. Section 6, supra, provides only that the application “must be made before expiration of the period.” (Emphasis supplied.) The Act does not impose a penalty of dismissаl where application has been made but no extension granted before expiration of the 30 days. To construe it as requiring dismissal where an appellant did not cause the delay and the trial judge declined to grant a requested extension would
Therefore, having complied with the requirements of the Act for obtaining an extension of time for filing of the transcript and thus having done all he could do toward obtaining it, the appellant was entitled to an extension as originally applied for.
3. We cannot agree that if the appellant, upon original denial of the application, still desired the extension he should have instituted mandamus proceedings against the trial judge to compel him to grant it. The Appellate Practice Act of 1965, supra, does not require any such action. Furthermore, a mandamus proceeding for that purpose is not authorized. One superior court judge cannot mandamus another (Shreve v. Pendleton, 129 Ga. 374 (1) (58 SE 880, 12 AC 563)), and the Court of Appeals has no jurisdiction to compel a superior court judge to grant such an extension. The appellate courts havе recognized their lack of jurisdiction to grant such extensions (Court of Appeals Rule 12, Supreme Court Rule 7), and resort by appellant to the Court of Appeals for mandamus to require the trial judge to do so would have achieved no useful purpose.
Thus, the appellant took the only course available in order to obtаin the necessary extension. The denial order dated May 4 was not received until May 6, one day after the 30 day period. On that date his counsel filed with the trial court clerk the motion for extension invoking the discretionary power of the trial judge under Section 6 of the Act, supra. This was in the same court, in the same case, before the same judge, and for the same reason and purpose as before—to obtain an extension of time due to the court reporter‘s inability to prepare the transcript within the 30 day period. In effect it was the continuation and renewal of the original effort with only a different basis, discretionary instead of mandatory. It was cеrtainly no abandonment. The trial judge‘s final order clearly recognized this. Acting upon such discretionary basis he reconsidered the matter and, being satisfied that it was deserving and necessary, granted the extension. This action, as we see it, was correct.
Therefore, we hold that the appeal should not have been dismissed.
The judgment of the Court of Appeals is reversed. Mobley, Grice and Undercofler, JJ., and Judge H. O. Hubert, Jr., concur. Duckworth, C. J., Almand, P. J., and Nichols, J., dissent. Frankum, J., disqualified.
DUCKWORTH, Chief Justice, dissenting. In Smith v. Equitable Mortgage Co., 98 Ga. 240 (25 SE 423), it was held that the superior court is a court of record. At page 241 of the opinion after stating motions made during the trial seeking privileges or the adjudication of rights which “fall within the pleadings” may be made orally, and if the judgment thereon is registered upon the minutes of the court this will suffiсe, then the court said: “But where it is sought to invoke the powers of the court touching matters which lie outside the pleadings, though in some sense pertinent to the cause, the court can acquire jurisdiction for that purpose only through the means of a written application or motion for the relief desired.” It can not with logic and reason be said an аpplication under
The definition of a court of record stated in DeKalb County v. Deason, 221 Ga. 237 (144 SE2d 446), would require such applications or motions to be in writing. The 1965 Appellatе Practice Act (
I am mindful of the constitutional mandate that bills of exceptions must not be dismissed because of delays, unless it is the fault of the party or his counsel, and I would apply it to appeals. But when the law plainly demands that when an application for an extension of time is made in the superior court it must be in writing, and must be made before the fixed time expires, and counsel does neither of these, the fault rests squarely upon counsel. But taking the majority view that in some mysterious way the purported order which the judge did not sign comprehends and satisfies all the law, the indispensable court order of extension is totally absent in this procedure.
The only application for an extension in the record was made not before but after the expiration of the period for filing, and hence it has no sanction in the statute. It is revealing in other respeсts. It shows that the lawyer drawing it knew the court was one of record, and that in such a court the application must be in writing. It also shows that he knew the application must set forth reasons for granting it. But not having been filed in time it is a nullity, and this court has no right even to consider it.
Finally the majority of necessity hold that the mere making of the applicatiоn works an extension because no order on any motion, oral or written, before the original period for filing expired was issued, and if this is to be the rule then all legislative attempt to expedite by fixing time limits is put at nought. If there are to be extensions in this manner, to what time does the extension go? By this indefiniteness and confusion the party who perhaps after large expenditure of time and money to obtain his judgment is denied the fruits of his judgment because this court‘s ruling enables the loser in the trial to cause the judgment to remain indefinitely suspended in the air. By fixing time limits for taking the various steps to perfect an appeal, the
For the foregoing reasons I dissent.
I am authorized to state that Presiding Justice Almand and Justice Nichols concur in this dissent.