Hornsby v. Rodriguez, 42908

• Citation: 116 Ga.App. 234,156 S.E.2d 830
• Decision Date: 14 July 1967
• Docket Number: No. 42908,No. 1,42908,1
• Parties: W. R. HORNSBY v. C. R. RODRIGUEZ
• Court: United States Court of Appeals (Georgia)

Page 830

156 S.E.2d 830

116 Ga.App. 234

W. R. HORNSBY v. C. R. RODRIGUEZ.

No. 42908.

Court of Appeals of Georgia, Division No. 1.

July 14, 1967.

Rehearing Denied July 26, 1967.

Stanley H. Nylen, Atlanta, for appellant.

Melvin Pazol, Atlanta, for appellee.

Syllabus Opinion by the Court

HALL, Judge.

1. The appellee filed a motion to dismiss the appeal on the ground that the record was not filed in this court within the time prescribed by law.

The Appellate Practice Act of 1965, Ga.Laws 1965, p. 18, as amended, Ga.Laws 1966, pp. 493, 497, provides: 'Where no transcript of evidence and proceedings is to be sent up, the clerk shall prepare and transmit the record within (twenty) 20 days after the date of filing of the notice of appeal. If for any reason the clerk is unable to transmit the record * * * within the time hereinbefore required, or when an extension of time was obtained under section 6-804 hereof, he shall state in his certificate the cause of the delay, and the appeal shall not be dismissed.' All costs are to be paid in the court below or the appellant shall make an affidavit that he is unable to pay the costs before the clerk is required to transmit the record to the appellate court. Code Ann. § 24-2729.

The notice of appeal was filed on March 28, 1967. The bill for costs was mailed to the appellant on April 13, 1967. The costs were paid on April 28, 1967, and the record was transmitted on May 10, 1967. The certificate of the clerk shows that the delay between April 28 and May 10 was the fault of the clerk. See Code Ann. § 2-3705 (Constitution of 1945); Code Ann. § 6-808. The twenty days expired on April 17, 1967, and no extension of time was obtained under Section 6 of the Act. Does the eleven day delay (April 17 to April 28) in paying the costs, which was the fault of the appellant, require that this appeal be dismissed?

In a recent case involving a delay of seventy days in payment of costs, the Supreme Court held that 'Justice delayed is often justice denied' and that it would not consider an appeal 'which represents a stale one caused by the laches of the appellant * * *.' George v. American Credit Control, Inc., 222 Ga. 512, 150 S.E.2d 683; Vezzani v. Vezzani, 222 Ga. 853, 153 S.E.2d 161. (Emphasis supplied.) In City of Atlanta v. Akins, 116 Ga.App. 230, 156 S.E.2d 665, this court held that 'The Court in Vezzani v. Vezzani, 222 Ga. 853, 153 S.E.2d 161 and perhaps other cases has dismissed, not because the costs were not paid but because as a result of that fact the appeal was not timely filed. The latter question is one which concerns this court; the former primarily concerns the trial court.' The word 'stale' is used to refer to a right that has not been asserted for so long a time as to amount to 'laches.' Underwood v. Underwood, 142 Ga. 41, 83 S.E. 208, L.R.A.1915B 674. 'Laches is not, like limitations, a mere matter of time, but principally a question of the inequity of permitting the claim to be enforced, an inequity founded on some intermediate change in conditions.' Miller v. Everett, 192 Ga. 26, 34, 14 S.E.2d 449.

Was the appeal timely filed in this court, or on the contrary has justice been delayed and some inequity resulted by virtue of some intermediate change in condition? The delay between April 17 and April 28 is inconsequential for the reason that any transmittal of the record to this have resulted in the appeal being docketed court between April 4 and May 9 would in this court for the June Calendar. Justice has not been delayed by the delay in paying costs. There was no intermediate change in conditions. Had the clerk transmitted the record on the day costs were paid (April 28) or within eleven days thereafter (May 9), the appeal would have been timely filed in this court. See Town of Fort Oglethorpe v. Catoosa County, 80 Ga.App. 188, 192, 55 S.E.2d 753. The motion to dismiss is denied.

2. The petitioner, who had obtained a writ of ne exeat against the defendant in connection with a divorce decree, filed an 'Application for contempt and rule against bonding company.' Upon this application the trial court entered judgment against the surety on the ne exeat bond. The surety, hereinafter called the respondent, appeals from this judgment and from the antecedent judgment overruling his motion to dismiss the petitioner's application to...