Davis v. Davis, 23645

• Decision Date: 06 October 1966
• Docket Number: No. 23645,23645
• Citation: 222 Ga. 579,151 S.E.2d 123
• Parties: Mary Jo Penland DAVIS v. William R. DAVIS.
• Court: Georgia Supreme Court

Page 123

151 S.E.2d 123

222 Ga. 579

Mary Jo Penland DAVIS v. William R. DAVIS.

No. 23645.

Supreme Court of Georgia.

Oct. 6, 1966.

Syllabus by the Court

The appeal in the present case must be dismissed because of the failure of the appellant to follow mandatory requirements of the Appellate Practice Act.

Cowart, Sapp, Alaimo & Gale, Robert Asa Sapp, Brunswick, for plaintiff in error.

Harrison & Laseter, Robert W. Harrison, John R. Laseter, St. Marys, for defendant in error.

COOK, Justice.

Motion to dismiss this appeal has been made by the appellee on the ground that the appellant failed to file the transcript of the evidence within thirty days after filing the notice of appeal, that no application was made to the trial judge for an extension of time for filing the transcript and no extension was granted, and that the transcript was not filed until more than six months after filing the notice of appeal.

The Appellate Practice Act of 1965 (Ga.L.1965, pp. 18-40), as amended (Ga.L.1965, pp. 240-244; Ga.L.1966, pp. 493-501), provides in § 11 thereof in part as follows: 'Where there is a transcript of evidence and proceedings to be included in the record on appeal, the appellant shall cause the transcript to be prepared and filed as provided by section 10 of this Act, but when the appellant has designated that the transcript not be made a part of the record on appeal and its inclusion is by reason of a designation thereof by appellee, the appellee shall cause the transcript to be prepared and filed as hereinbefore referred to at his expense. The party having the responsibility of filing the transcript shall cause it to be filed within thirty (30) days after filing of the notice of appeal or designation by appellee, as the case may be, unless the time is extended as provided in section 6. In all cases, it shall be the duty of the trial judge to grant such extensions of time as may be necessary to enable the court reporter to complete his transcript of evidence and proceedings.' (Ga.L.1965, pp. 18, 26, Code Ann. § 6-806).

Section 6 provides with reference to the granting of extensions in filing the transcript: 'Any judge of the trial court, or any justice or judge of the appellate court (but see Rule 7 of this court providing that this court will issue no order granting extension of time under this section) to which the appeal is to be taken may, in his discretion, and without motion or notice to the other party, grant extensions of time for the filing of (a) notice of appeal, (b) notice of cross appeal, (c) transcript of the evidence and proceedings on appeal or in any other instance where filing of the transcript is required or permitted by law. * * * 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 order granting an extension of time shall be promptly filed with the clerk of the trial court, and the party securing it shall serve copies thereof on all other parties in the manner hereinafter prescribed.' (Ga.L.1965, pp, 18, 21-22; Code Ann. § 6-804).

Section 12 provides in part as follows: 'Within five (5) days after the date of filing of the transcript of evidence and proceedings by the appellant or appellee, as the case may be, it shall be the duty of the clerk of the trial court to prepare a complete copy of the entire record of the case, omitting only those things designated for omission by the appellant and which were not designated for inclusion by the appellee, together with a copy of the notice of appeal and copy of any notice of cross appeal, with date of filing thereon, and...