ITT Indus. Credit Co. v. Burnham, 58516
| Decision Date | 25 January 1980 |
| Docket Number | No. 58516,58516 |
| Citation | 263 S.E.2d 482,152 Ga.App. 641 |
| Parties | ITT INDUSTRIAL CREDIT COMPANY v. BURNHAM. |
| Court | Georgia Court of Appeals |
Lewis N. Jones, Atlanta, for appellant.
John L. Watson, Jr., Jonesboro, for appellee.
Defendant's motion to dismiss plaintiff's appeal was granted on the grounds that a trial transcript had not been filed within the 20-day limit of Code Ann. § 6-808. We affirm.
1. It is undisputed that because plaintiff failed to timely pay court costs, his trial transcript was filed three days late. When a transcript is not timely filed, it is within the authority of the trial court to dismiss an appeal for delay (Code Ann. § 6-809(b)) if the court finds that such delay was both unreasonable and inexcusable. ITT Indus. Credit Co. v. Carpet Factory, Inc., 140 Ga.App. 204, 230 S.E.2d 354.
A. In the case at bar the trial court determined as a matter of fact that the reasons for delay proffered by counsel did not excuse his late payment of court costs. " 'Since . . . the cause for delay in the processing of the appeal is a fact issue for determination in the trial court' (Cit.)" (Gilman Paper Co. v. James, 235 Ga. 348, 349, 219 S.E.2d 447, 449), we refuse to disturb the court's finding that appellant's delay was inexcusable.
B. Nor will we upset the court's determination that the delay was unreasonable. Again, this finding is within the discretion of the trial court. Young v. Climatrol Southeast Dist. Corp., 237 Ga. 53, 55, 226 S.E.2d 737. See also Pickett v. Paine, 139 Ga.App. 508, 229 S.E.2d 90, holding that a one-day delay was unreasonable.
Appellant urges that since a two-day delay in Young was held to be reasonable, as a matter of law, that a three-day delay should similarly be considered reasonable.
Contrary to appellant's contentions, Young does not stand for the proposition that a two-day delay is not unreasonable as a matter of law. Rather, the holding in Young ( the trial court's dismissal of an appeal) was based on the Supreme Court's determination that the trial court had failed to exercise its discretion to determine whether or not the delay had been reasonable. Since before the trial court is authorized to dismiss an appeal under Code Ann. § 6-809(b) the court must first determine that the delay was both unreasonable and inexcusable, the Supreme Court reversed the trial court for its failure to make the requisite findings of fact.
Unlike the trial court in Young, the court, in the case before us, exercised its discretion in determining that plaintiff's...
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CENTRAL OF GEORGIA RR v. DEC ASSOC.
...the trial judge. The question of unreasonable delay is a matter for the sound discretion of the trial court. ITT Indus. Credit Co. v. Burnham, 152 Ga.App. 641, 263 S.E.2d 482 (1979); Johnson v. Clements, 135 Ga.App. 495, 218 S.E.2d 109 (1975). In the exercise of its discretion, the trial co......
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Green v. Weaver, 62855
...235 Ga. 348, 349, 219 S.E.2d 447; McIntyre v. Gulf Oil Corp., 151 Ga.App. 855, 856-857, 261 S.E.2d 766; ITT Industrial Credit Co. v. Burnham, 152 Ga.App. 641, 642, 263 S.E.2d 482; Mawhorter v. Mawhorter, 161 Ga.App. 293, --- S.E.2d Judgment reversed. QUILLIAN, C. J., and POPE, J., concur. ...
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McDonald v. Garden Services, Inc., s. 64318
...Paine, 139 Ga.App. 508, 229 S.E.2d 90); a two-day delay (Young v. Climatrol, supra) and a three-day delay (ITT Industrial Credit Co. v. Burnham, 152 Ga.App. 641, 642, 263 S.E.2d 482). In the present case there is no question that appellant was afforded a full hearing on the motion to dismis......
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Bowen v. Clayton County Hosp. Authority
...plaintiff (appellant). See also in this connection Pickett v. Paine, 139 Ga.App. 508, 509, 229 S.E.2d 90; ITT Industrial Credit Co. v. Burnham, 152 Ga.App. 641, 642, 263 S.E.2d 482. Judgment DEEN, P.J., and SOGNIER, J., concur. ...