Cranman Ins. Agency, Inc. v. Wilson Marine Sales & Service, Inc.
| Decision Date | 18 October 1978 |
| Docket Number | 56496,Nos. 56495,s. 56495 |
| Citation | 147 Ga.App. 590,249 S.E.2d 631 |
| Parties | WILSON MARINE SALES & SERVICE, INC. et al. v. CRANMAN INSURANCE AGENCY, INC. et al. |
| Court | Georgia Court of Appeals |
Falligant, Kent & Toporek, Julian H. Toporek, Savannah, for appellants.
Hendrix & Shea, John W. Hendrix, Bart E. Shea, Marshall R. Wood, Savannah, for appellees.
Defendants below, having failed to follow Code Ann. § 6-803 requiring them to file their notice of appeal within 30 days of the judgment overruling their motion for judgment n. o. v. or for new trial, procured another order setting the first aside, but reinstating the same rulings, in order to commence another 30-day period in which to file their notice of appeal.
As justification for this procedure the trial court recited in the order that it was the court's custom to mail copies of all orders to counsel of record; that counsel of record were attorneys A and B for plaintiffs and C and D for defendants; that subsequent to the trial, attorneys C and D had ceased to belong to the same firm, and attorney D had undertaken to prosecute the appeal; that a copy of the order overruling the motions was not sent to attorney D, who allowed the time for appeal to expire because he was unaware of the order, even though copies had been sent to attorney A for plaintiffs and attorney C for defendants; and that in order "to give all possible rights of appeal, this court now intends to vacate its previous orders and reinstate the same in the same form . . ."
Defendants then filed their notice of appeal of this latter order, to which plaintiffs responded with a motion to dismiss in the trial court on the grounds that the second order was merely a restatement of the first for which the time for appeal had expired. In the posture of the proceedings here # 56495 is the main appeal in which defendants seek to overturn the overruling of their motion for judgment n. o. v. or new trial; and # 56496 is plaintiffs' cross appeal from the second order vacating the first, error being also enumerated upon the denial of the motion to dismiss the notice of appeal.
We dismiss the main appeal pursuant to motion in this court, and we reverse in the cross appeal. Attorneys A and C, who received copies of the order, remained counsel of record insofar as we have been apprised; and while it might have been more convenient from the attorneys' point of view for the court to seek to have each and every attorney served, that undertaking was gratuitous insofar as our jurisdiction is concerned since counsel were not entitled to notice of entry of judgment to start the 30-day period running. Alexander v. Blackmon, 129 Ga.App. 214, 199 S.E.2d 376 (1973).
As has been consistently held, "the burden is on the party desiring to take the appeal to determine when the judgment is filed in the trial court, and the burden is on the party desiring to appeal to file his notice of appeal within the 30-day period or within a duly authorized extension of the 30-day period." Jordan v. Caldwell, 229 Ga. 343, 344, 191 S.E.2d 530, 531 (1972); Rogers v. Rogers, 238 Ga. 576, 234 S.E.2d 495 (1977). Filing of the notice of appeal within 30 days as required by Code Ann. § 6-803 is a mandatory prerequisite to the attaching of appellate court jurisdiction (Wood v. Atkinson, 229 Ga. 179, 190 S.E.2d 46 (1972); Venable v. Block, 141 Ga.App. 523, 233 S.E.2d 878 (1977)), and it can not be dispensed with upon the ground that counsel did not know the order sought to be appealed had been filed. Rogers v. Rogers, 238 Ga. 576, 234 S.E.2d 495, supra; Alexander v. Blackmon, 129 Ga.App. 214, 199 S.E.2d 376, supra. The rule obtains even where the untimeliness is sought to be attributed to the clerk's "docket sheet", Lewis & Sheron Enterprises, Inc. v. Great A & P Tea Co., 136 Ga.App. 910, 222 S.E.2d 659 (1975), or to misstatements of the clerk of court (Jordan v. Caldwell, 229 Ga. 343, 191 S.E.2d 530, supra; H. R. Lee Invest. Corp. v. Groover, 138 Ga.App. 231, 232(1), 225 S.E.2d 742 (1976)), or, as here, to the court. Smith v. Forrester, 145 Ga.App. 281, 243 S.E.2d 575 (1978).
Thus while the court may have the general power to enter certain types of orders, e. g. those allowing late filing of papers or those entered or effective nunc pro tunc, that power "cannot be used to correct the failure to comply with the mandatory requirements of the Appellate Practice Act." Blackstone v. State, 131 Ga.App. 666, 206 S.E.2d 553 (1974) (); Arnold v. DeKalb County, 141 Ga.App. 315, 233 S.E.2d 273 (1977) (). Accord, Smith v. Forrester, 145 Ga.App. 281, 243 S.E.2d 575, supra, (order allowing late...
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