115 Ga. App. 352 | Ga. Ct. App. | 1967
Lead Opinion
1. “The solemn duty devolves upon this court to inquire into its jurisdiction to entertain each appeal and review the alleged errors of the trial court. Byrd v. Goodman, 192 Ga. 466 (1) (15 SE2d 619). The jurisdiction of an appellate court to consider an appeal depends upon whether the appeal is taken in substantial compliance with the rules of appellate procedure prescribing the conditions under which the judgment of the trial court may be considered appealable.” Gibson v. Hodges, 221 Ga. 779, 780 (1) (147 SE2d 329).
2. Section 6 of the Appellate Practice Act of 1965 (Ga. L. 1965, pp. 18, 21; Code Ann. § 6-804) provides, with reference to the granting of extensions of time for filing the transcript, that “any judge of the trial court . . . may, in his discretion, and without motion or notice to the other party, grant extensions of time for the filing of . . . [the] transcript of the evidence and proceedings on appeal. . . Any application to any court, justice or judge for an extension must be made before expiration of the period for filing as originally prescribed or as extended by a permissible previous order.” The Appellate Practice Act further provides that the party having the responsibility of filing the transcript shall cause it to be filed within 30' days after the filing of the notice of appeal or designation by the appellee as the case may be, unless such time is extended as provided in Sec. 6 (Ga. L. 1965, pp. 18, 26, § 11; Code Ann. § 6-806).
3. In the instant case the notice of appeal was filed on April 5, 1966. On May 10, 1966, 35 days thereafter, appellant, as shown by order of the court, “presented to the court a mo
4. If it should be contended that the case of Carmack v. Oglethorpe Co., 114 Ga. App. 512 (151 SE2d 799), be a precedent for a conclusion different from that which we have reached in this case, we need only to point out that that case was decided in this court 4 days after the decision of the Supreme Court in the Davis case, supra, and at a time, of course, when that decision had not been published in pamphlet form or knowledge thereof otherwise disseminated so as to afford this court notice of its holding. A rehearing was denied in the Carmack case on October 26, without further comment by this court upon the sufficiency of the appeal, and it is obvious that this court at that time still had no actual notice of the ruling in the Davis case, otherwise we would have been bound to have followed the Davis case in Carmack as we are now bound to follow it. Thus, the ruling in Division 1 of the Carmack case must yield to the ruling in the Davis case.
Appeal dismissed.
Rehearing
On Motion for Rehearing.
In a motion for rehearing counsel for the appellant contends that in rendering the foregoing opinion and judgment this court overlooked the fact as shown by the record that on May 3, 1966, within 30 days from the date the notice of appeal was filed, counsel for appellant presented to the judge who presided in the case a proposed order extending the time for filing the transcript, which the judge, by an order rendered on the 4th day of May, declined to sign for reasons which it is not necessary to set forth here. This court did not overlook this fact. Conceding, for the purpose of this opinion, that the presentation of a prepared order for the judge’s signature amounted to an application for an extension of time under the Appellate Practice Act, in the view which we took of the case it was not material to the decision. Counsel for appellant contends that upon receipt of notice of the entry of the above mentioned order they promptly made a motion for a reconsideration of the order of May 4, and that on May 12, 1966, the court entered an order granting an extension of time for the filing of the transcript for a period of 90 days.
The written motion, upon which the last order above referred to was entered, was filed with the clerk on May 6, 1966, and after referring to the previous application and the entry of the order denying it, reads: “Now comes appellant, E. S. Elliott, and moves the court to grant the extension of time for the filing of such transcript under the discretionary power of the court, . . .” This cannot be construed as a renewal of, re-insistence upon, or application for reconsideration of, the previous application, but clearly constituted a distinct and new application to the court. It was not, however, as pointed out in the foregoing opinion, presented to the court within the time required by law. The Appellate Practice Act requires that “any application to any court, justice or judge for an extension [of time] must be made before expiration of the period for filing as originally prescribed or as extended by a permissible previous order.” Code Ann. § 6-804. Even if filing such application with the clerk
The view which we take of this matter may be succinctly summarized: Counsel timely presented an order providing for an extension of time which the judge refused to sign. Thereafter, counsel abandoned his original application and filed a new application, but too late. If he wished to rely upon his original application and assert his right to have the judge grant an extension of time under the mandatory provisions contained in the last sentence of Code Ann. § 6-806, he had his remedy by way of mandamus, by which he could have secured a judicial review of the judge’s ruling that the mandatory requirements of that law are unconstitutional. He did not pursue that remedy, but abandoned his timely application, and now seeks to travel on an untimely one. This court has no discretion but to declare the law as applicable to his case and dismiss it.
Motion jor rehearing denied.
Dissenting Opinion
dissenting. Article VI, Section II, Paragraph V of the Constitution of the State of Georgia of 1945, (Code Ann. § 2-3705) provides in part: “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.” (Emphasis supplied.)
On May 3, 1966, the following order (in blank as to date and signature of the trial judge) was presented to the trial judge for his signature. “Order—It appearing that the court reporter will be unable to prepare the record specified in the notice of appeal of appellant, E. S. Elliott, in the foregoing case within thirty (30) days after filing the notice of appeal, upon application of appellant, E. S. Elliott, time for the filing of the transcript as designated in the notice of appeal is hereby extended for an additional thirty (30) days and until the 8th day of June 1966.” On May 4, 1966, the judge passed the following order: “The foregoing document was presented to me on May 3, 1966, by Mr. Clyde Dekle, of counsel for appellant, E. S.
In their motion for a rehearing counsel for appellant state the following: “. . . (a) Attorneys for appellant certify that when the request was presented to the Honorable Durwood Pye on the 3rd day of May 1966, the judge took the request under consideration and stated that he would act thereon, the order of May 4, 1966 was first received by attorney for appellant on the 6th day of May 1966 and attorney for appellant had no knowledge of such order until such time. 2. On the 6th day of May, 1966, appellant filed in the office of the Clerk of the Superior Court of Fulton County his motion for a reconsideration of the order declining to grant the request (R358), the Honorable Durwood Pye not being available for personal presentation at that time. 3. On the 10th day of May 1966 the motion for reconsideration was personally presented to the Honorable Durwood Pye and the court then entered its order
The certification of the counsel for appellants in their motion for a rehearing shows that the delay in moving for an extension and the delay in obtaining the transcript within 30 days from the filing of the appeal was not due to appellant’s negligence, fault, laches or misconduct. If I am correct in holding that the delay in obtaining the transcript in due time was not due to the fault of the appellant the above cited provision of the Constitution forbids the dismissal of the appeal by this court.
In Davis v. Davis, 222 Ga. 579, supra, cited by the majority, there was no application for an extension of time filed within 30 days from the date of the filing of the appeal. In that case the Supreme Court held that failure to apply for an extension in time amounted to laches. There was, in my opinion, no laches on the part of counsel or appellant in this case.
I am authorized to state that Presiding Judge Bell and Judges Hall and Quillian concur in this dissent.