Howard v. Mitcham
| Decision Date | 09 April 1968 |
| Docket Number | No. 24548,24548 |
| Citation | 161 S.E.2d 291,224 Ga. 288 |
| Parties | T. L. HOWARD, Jr. v. L. G. MITCHAM, Sheriff et al. |
| Court | Georgia Supreme Court |
Hubert H. Howard, Jesup, for appellant.
Thomas E. Dawson, R. L. Dawson, Ludowici, for appellees.
Syllabus Opinion by the Court
The notice of appeal in this case was filed in the office of the clerk of this court on February 7, 1968. On March 25, 1968, after the case had been submitted on briefs without oral argument, a certificate of the Clerk of the Superior Court of Long County, dated March 22, 1968, was filed in the office of the clerk of this court, which certificate shows that the costs due to have been paid to the clerk of the superior court before transmittal of the record to this court had not been paid as of the date of the certificate. The certificate further shows that the record was prepared by a deputy clerk who presented it to the clerk for certification, who certified the same on the assumption that the deputy clerk had collected the costs; and that 'no proper affidavit denying the ability of the appellant to pay' the costs had been filed. The appellees have filed a motion to dismiss the appeal based upon the contents of the certificate. Code Ann. § 24-2729 as amended by the Act of 1963 (Ga.L.1963 p. 368) provides: 'In all cases certified to the appellate courts, the costs for preparing the transcript of the record shall be paid by the appellant to the clerk before the same shall be transmitted, unless the appellant makes affidavit that he is unable to pay such costs or give security therefor.' The case of Galloway v. Merrill, 213 Ga. 633(2), 100 S.E.2d 443, relied upon by the appellant in opposition to the motion to dismiss was decided prior to the 1963 Act Code § 24-2729. That Act eliminated the basis for the ruling in the case relied upon and other cases of similar import, and that case, therefore, is not authority for a contrary ruling. Under the facts appearing in the certificate of the clerk, it is apparent the appeal was inadvertently transmitted to this court by the clerk of the trial court at a time when he was not authorized by law to transmit it and under the provisions of the Code section above quoted, the appeal is improperly here and must be dismissed.
Appeal dismissed.
All the Justices concur, except MOBLEY and UNDERCOFLER, JJ., who dissent.
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J. D. Jewell, Inc. v. Hancock
...costs prior to sending the record to this court, would not affect the rights of litigants. The decision of this court in Howard v. Mitcham, 224 Ga. 288, 161 S.E.2d 291, in which two Justices dissented, is expressly disapproved and will not be The motion to dismiss is denied. 2. Error is ass......
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Elliott v. Walton
...properly transmitted (albeit inadvertently, see J. D. Jewell, Inc. v. Hancock, 226 Ga. 480(1),175 S.E.2d 847, overruling Howard v. Mitcham, 224 Ga. 288, 161 S.E.2d 291, and Rogers v. International Mineral &c. Corp., 120 Ga.App. 54, 169 S.E.2d 659), the record in this case was never transmit......
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Young v. State, 46121
...Moore Ford Company v. Cambron, 116 Ga.App. 365, 157 S.E.2d 504. These decisions were overruled by the Supreme Court in Howard v. Mitcham, 224 Ga. 288, 161 S.E.2d 291. Fortunately, however, they were rehabilitated when the Supreme Court subsequently overruled its Howard decision in J. D. Jew......
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Rogers v. International Mineral & Chemical Corp., 44329
...been paid. However, the decisions above referred to have been effectively overruled, on the point under discussion, by Howard v. Mitcham, 224 Ga. 288, 161 S.E.2d 291. In the Howard case, after the case had been filed with the Clerk of the Supreme Court and submitted on briefs without oral a......