Hooper v. Southern Bell Tel. & Tel. Co., A90A0632
| Decision Date | 14 May 1990 |
| Docket Number | No. A90A0632,A90A0632 |
| Citation | 195 Ga.App. 629,394 S.E.2d 798 |
| Court | Georgia Court of Appeals |
| Parties | HOOPER v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY. |
Joab L. Kunin, Atlanta, for appellant.
Glass, McCullough, Sherrill & Harrold, R. Philip Shinall III, Atlanta, for appellee.
The trial court dismissed Hooper's appeal after concluding that there was unreasonable and inexcusable delay in transmitting the record for appeal caused by Hooper's failure to pay costs, file a pauper's affidavit, and timely request a period of extension. The court had granted summary judgment to defendant telephone company in Hooper's suit for personal injury and loss of consortium from his use of defective telephone equipment.
Summary judgment and dismissal were granted on February 21, 1989. Hooper filed his notice of appeal from the judgment on March 1. There was no transcript of the summary judgment hearing and the clerk mailed Hooper's counsel a bill for preparation of the record for transmittal to this Court on March 16. Counsel received it on March 19, a Sunday. More than a month later, on April 24, Hooper moved to extend the time for payment of costs, asserting an inability to pay and that his estranged wife had agreed to make the payment. The motion did not include any supporting affidavits or request to proceed in forma pauperis.
On May 8, Southern Bell moved to dismiss the appeal for failure to pay costs. Hooper paid on May 12 and responded to the motion to dismiss on June 15.
1. Hooper contends that the court erred in determining that his eventual payment of costs failed to satisfy the legal requirements and prevent dismissal. He maintains that his notice of appeal, motion for extension of time, and payment of costs acted as a supersedeas removing the trial court's jurisdiction and authority to dismiss the appeal.
An appeal must be decided on the record sent up from the lower court. Fahrig v. Garrett, 224 Ga. 817, 818(2), 165 S.E.2d 126 (1968), modified in part on other grounds, Southeastern Plumbing, etc., Co. v. Lee, 232 Ga. 626, 630, 208 S.E.2d 449 (1974). After an appellant has filed a notice of appeal, his duty as to the record is to pay the costs. See Long v. City of Midway, 251 Ga. 364, 306 S.E.2d 639 (1983). The trial court may order an appeal dismissed where there has been unreasonable delay in the transmission of the record to the appellate court and the delay was inexcusable and caused by the failure of a party to pay costs in the trial court or file an affidavit of indigence. However, no appeal shall be dismissed for failure to pay costs if the costs are paid within twenty days of appellant's receipt of notice of the amount of costs. OCGA § 5-6-48(c).
The trial court does not lose complete jurisdiction in a case by the mere filing of a notice of appeal. See, e.g., Allied Productions v. Peterson, 233 Ga. 266, 267, 211 S.E.2d 123 (1974). The plain language and import of OCGA § 5-6-48(c) is that the filing of the notice of appeal does not divest the trial court of authority to consider dismissal of an appeal. Otherwise the statutory provision for dismissal would be meaningless. Moreover, "[i]n a civil action the filing of a notice of appeal does not serve as a supersedeas until all costs in the trial court have been paid." Chappelaer v. Gen. GMC Trucks, 130 Ga.App. 664 (hn.1), 204 S.E.2d 326 (1974); OCGA § 5-6-46(a).
Likewise appellant's unsupported request for a time extension did not deprive the trial court of its dismissal authority. The granting of such an extension is within the court's discretion. OCGA § 5-6-39(a). Furthermore, "[a]ny 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." OCGA § 5-6-39(d). Inasmuch as no transcript was involved, compare OCGA § 5-6-42, Hooper under OCGA § 5-6-48(c) had a period of twenty...
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Cent. Ga. Dev. Grp., Inc. v. Synovus Bank, A12A1920.
...supra (calculating delay as “57 calendar days from receipt of the trial court's notice”); Hooper v. Southern Bell Telephone & Telegraph Co., 195 Ga.App. 629, 630(2), 394 S.E.2d 798 (1990) (calculating delay of 54 calendar days from receipt of bill of costs); The Langdale Co. v. Langdale, 29......
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...occasioned by the clerk, the trial court has no discretion to dismiss the appeal. Long, supra; compare Hooper v. Southern Bell Tel. &c. Co., 195 Ga.App. 629, 630(2), 394 S.E.2d 798 (1990) ( failure to pay costs until 72 days after receipt of bill for costs both unreasonable and inexcusable)......
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...its dismissal authority since it is within the trial court's discretion to grant such an extension. See Hooper v. Southern Bell Tel., etc., Co., 195 Ga.App. 629(1), 394 S.E.2d 798 (1990). Moreover, appellant's request for an extension was untimely as it was filed after expiration of the 30-......