Baxter v. Long

• Decision Date: 25 September 1970
• Docket Number: 45622,Nos. 45621,No. 2,s. 45621,2
• Court: Georgia Court of Appeals
• Parties: Linda L. BAXTER v. Lucille M. LONG et al. Lucille M. LONG et al. v. Linda L. BAXTER

Page 712

177 S.E.2d 712

122 Ga.App. 500

Linda L. BAXTER v. Lucille M. LONG et al.

Lucille M. LONG et al. v. Linda L. BAXTER.

Nos. 45621, 45622.

Court of Appeals of Georgia, Division No. 2.

Sept. 25, 1970.

Claude V. Driver, Buchanan, Howe & Murphy, Harold L. Murphy, Tallapoosa, for appellant.

Perren, Lane & Sanders, Thomas C. Sanders, Dallas, for appellees.

Syllabus Opinion by the Court

EBERHARDT, Judge.

Appellee moves to dismiss the appeal for the reason that the transcript of the evidence was not filed in the office of the clerk of the trial court within 30 days after the filing of the notice of appeal, as required by Code Ann. § 6-806, and that no application for extension of the time for filing the transcript was made within the 30-day period, as required by Code Ann. § 6-804.

It appears from the record that the judgment which appellant seeks to review was entered March 5, 1970 and that a notice of appeal was filed April 3. On April 22 application was made for an extension of time for filing the transcript of evidence, and an extension was accordingly granted until and through May 23. The transcript was not filed on or before May 23, and on May 27 appellant made application to the court for an order granting further extension of the time for filing. The order was granted ex parte on that date extending the time to June 6, 1970, reciting that it was being 'granted nunc pro tunc as of May 23, 1970.' Appellee moved the court to vacate the order and dismiss the appeal, but the motion was denied, and appellee cross appeals from that judgment and moves to dismiss the main appeal. Held:

1. "The Appellate Practice Act of 1965 (Ga.L.1965, pp. 18, 21, 26), as amended, requires the transcript of evidence to be filed within 30 days after the filing of the notice of appeal (Code Ann. § 6-806) or an application must be made within that period for an extension of time for such filing. (Code Ann. § 6-804). (The Supreme Court) has repeatedly held that the provisions of this Act are mandatory and unless complied with the appeal must be dismissed. Davis v. Davis, 222 Ga. 579, 151 S.E.2d 123; Threatt v. McElreath, 223 Ga. 153, 154 S.E.2d 20; and Fleming v. Sanders, 223 Ga. 172, 154 S.E.2d 14.' Joiner v. State, 223 Ga. 367, 368, 155 S.E.2d 8.

'With regard to obtaining extensions of time for filing a transcript, Code Ann. § 6-804 (Ga.L.1965, pp. 18, 21) provides that 'any application * * * for an extension must be made before expiration of the period for filing as originally prescribed. * * *

'We have had regard to the 1968 Amendments to the Appellate Practice Act (Ga.L.1968, p. 1072, et seq.), but find that the same result still obtains. See Fahrig v. Garrett, 224 Ga. 817, 165 S.E.2d 126; Hardy v. D. G. Machinery & Gage Co., 224 Ga. 818, 165 S.E.2d 127.' Martin Theatres of Georgia v. Lloyd, 118 Ga.App. 835, 165 S.E.2d 909. And see Calloway v. State, 119 Ga.App. 194, 166 S.E.2d 613.

2. This requirement applies to the obtaining of additional extensions of time; the application must be made before expiration of the extension last granted. Biggs v. Phelps, 225 Ga. 435, 169 S.E.2d 303. If the application is made within the time it is, of course, immaterial that the order may be later entered. Elliott v. Leathers, 223 Ga. 497, 501, 156 S.E.2d 440.

3. An extension of the time for filing the transcript must be under and by virtue of a valid court order. Edwards v. Ware, 116 Ga.App. 27, 156 S.E.2d 671.

4. 'A nunc pro tunc entry is for the purpose of recording some action that was taken or judgment rendered previously to the making of the entry, which is to take effect as of the former date. Such entry cannot be made to serve the office of correcting a decision, however erroneous, or of supplying nonaction on the part of the court.' Pendergrass v. Duke, 147 Ga. 10(2), 92 S.E. 649. (Emphasis supplied). Accord: Stubbs v. Mendel, 148 Ga. 802, 98 S.E. 476; Dunn v. Southern Bell Telephone & Telegraph Co., 49 Ga.App. 264(2), 175 S.E. 261; Chandler v. Hammett, 73 Ga.App. 325, 36 S.E.2d 184; Allen v. Community Loan & Investment Corp., 78 Ga.App. 611, 51 S.E.2d 872; General Tire Service Co. v. Carlisle, 84 Ga.App. 288, 66 S.E.2d 161; Cowart v. Charles R. Hartsfield, Inc., 99 Ga.App. 338(3), 108 S.E.2d 206. 'A nunc pro tunc entry cannot supply non-action,' Sikes v. Charlton County, 103 Ga.App. 251, 257, 119 S.E.2d 59, 63, either of the court, or counsel or of a party.

Specifically, it cannot supply a failure to make the application within the time required by the statute. This is made very clear in Adams v. Payne, 219 Ga. 638, 135 S.E.2d 423, where Emeritus Judge Reynolds presided in the trial of a case when no request or order calling on him for the temporary service had been made or filed as required by the Act of 1962 (Ga.L.1962, p. 547), and the Supreme Court held his action to have been wholly nugatory, asserting: 'A proper written and filed request or order by Judge Banke calling on him for temporary service as required by the plain...