Gilland v. Leathers, 53426

• Decision Date: 09 March 1977
• Docket Number: No. 2,No. 53426,53426,2
• Citation: 141 Ga.App. 680,234 S.E.2d 338
• Parties: W. B. GILLAND v. S. T. LEATHERS, Jr., et al
• Court: Georgia Court of Appeals

Page 338

234 S.E.2d 338

141 Ga.App. 680

W. B. GILLAND v. S. T. LEATHERS, Jr., et al.

No. 53426.

Court of Appeals of Georgia, Division No. 2.

March 9, 1977.

Rehearing Denied March 24, 1977.

Jack K. Bohler, East Point, for appellant.

Troutman, Sanders, Lockerman & Ashmore, Alan E. Lubel, Atlanta, for appellees.

SHULMAN, Judge.

In an appeal to this court, appellant failed to cause to be filed on time a transcript of the evidence and proceedings. Some two weeks past the deadline, appellee moved in the trial court to dismiss the appeal. The trial court denied the motion to dismiss and granted an extension of time of approximately two months for the filing of the transcript. Appellant appeals to this court. Held :

Ga.Code Ann. § 6-809(b) governs dismissal of appeals for failure to cause the transcript to be filed and grants discretion to the trial court on the question of ordering the dismissal if it is shown that the delay was inexcusable and unreasonable. In the case of Young v. Climatrol, etc., Corp., 237 Ga. 53, 55, 226 S.E.2d 737, 739, our Supreme Court held: "Under the Appellate Practice Act, the dismissal of an appeal is not mandatory except for the three specific instances contained in the above section. All three relate to dismissals by the appellate courts. The provision authorizing the trial court to dismiss an appeal specifies that two elements must be present: One is that the delay was unreasonable and the other is that the unreasonable delay was inexcusable. In passing upon these issues, the trial court has discretion; however, it is a legal discretion which is subject to review in the appellate courts. See Gilman Paper Co. v. James, 235 Ga. 348, 219 S.E.2d 447 . . . In considering the question of unreasonable delay, it should be remembered that the time provided for filing the transcript or record is not jurisdictional, but merely a means of avoiding unreasonable delay so that the case can be presented on the earliest possible calendar in the appellate courts."

"It is the policy of both appellate courts in Georgia to attempt to avoid dismissing appeals and to try to reach the merits of every case when it can be done consistent with the mandate of the law. Holcomb v. Gray, 234 Ga. 7, 214 S.E.2d 512, and cits." Johnson v. Daniel, 135 Ga.App. 926, 927, 219 S.E.2d 579, 581.

"Punctuality is a virtue of high order, but truth and justice are even more exalted; hence the demand for punctuality in pleading should not be so strict as to...