On September 5, 1996, Obie A. Hameed brought suit against Loma Hall and First Union Corporation of Georgia seeking to recover from defendants for false arrest, false imprisonment, malicious prosecution, and libel and slander. On October 29, 1997, the trial court enterеd an order denying Hameed’s motion to correct a misnomer or add a defendant, granting defendants’ motion for summary judgment, and dismissing Hаmeed’s action with prejudice. On November 25, 1997, Hameed filed a notice of appeal of the October 29, 1997 order.
Hаmeed was billed for the preparation of the appeal record on December 3, 1997, and the bill of costs was delivered to Hameed’s counsel on December 8,1997. Hameed had not paid the cost of appeal as of Februаry 3, 1998, and the trial court issued an order directing Hameed and his counsel to show cause on February 18, 1998, as to why Hameed’s apрeal should not be dismissed. On February 5, 1998, Hameed paid the costs of appeal, which was 59 days after Hameed’s counsel had received the bill of costs.
In response to the trial court’s show cause order, Hameed presented the affidavit of his counsel averring that his delay in paying costs was occasioned by counsel’s personal difficulties, Hameed’s inability to pay, and counsel’s prior inability to advance the costs on Hameed’s behalf. Hameed presented his
The trial court found that there had beеn an unreasonable delay in the transmission of the record to the appellate court, that such delay was inexcusаble and was caused by the failure of Hameed to timely pay the costs in the trial court or to timely file an affidavit of indigenсe. The trial court further found that, “even if [Hameed’s] dilatory payment of costs or his late-filed affidavit could revive [the] aрpeal,” Hameed had made no efforts whatsoever to obtain the transcript of the hearing that was the subject of thе appeal, even though his notice of appeal stated that the “[t]ranscript of hearings and proceedings will bе filed for inclusion on the record on appeal,” and directed the clerk to “omit nothing from the record.” There was no order extending time for filing the transcript. The trial court found that the delay in filing the transcript was inexcusable and was caused by Hameed.
Based on these findings, on February 20, 1998, the trial court dismissed Hameed’s November 25, 1997 notice of appeal. It is from this order of dismissal that Hameed now appeals.
1. Hameed alleges that the trial court erred in dismissing his November 25, 1997 notice of apрeal.
“Whether or not to dismiss a notice of appeal for delay in paying costs [or filing a transcript] rests in the sound discrеtion of the trial court when the grounds to dismiss have been met. [Cit.]” Style Craft Homes v. Chapman,
Under the facts of this case, we find no abuse of discretion by the triаl court in finding that there had been an unreasonable delay in the transmission of the record to the appellate cоurt and that such delay was inexcusable and was caused by Hameed. Costs were not paid until just prior to the hearing to determinе if Hameed’s appeal should be dismissed, which was 59 days after counsel received notice of the costs. Hameed’s nоtice of appeal had been pending 72 days, and Hameed knew from the filing of such notice of appeal that costs must be paid. He made no effort to pay costs until the show cause order was entered. Further, Hameed did not file a timely affidavit of indigence.
Additionally, we find no abuse of discretion by the trial court in finding that the delay in filing the transcript was inexcusable аnd was caused by Hameed. “OCGA § 5-6-42 provides that a transcript must be filed within 30 days after the filing of the notice of appeal unless thе time is extended as provided by OCGA § 5-6-39.” Teston v. Mills,
Accordingly, the trial court did not err in dismissing the November 25, 1997 notice of appeal.
2. Hameed’s remaining enumerations of error arise out of the trial court’s order of October 29, 1997, which was the subject of the notice of appeal dismissed by the trial court. Having decided in Division 1 that such dismissal was proper, we need not consider these enumerations.
Judgment affirmed.