Jones v. State

Decision Date21 April 1971
Docket NumberNo. 1,No. 46107,46107,1
PartiesJohnny C. JONES v. The STATE
CourtGeorgia Court of Appeals

Howard Moore, Jr., Peter E. Rindskopf, George L. Howell, Atlanta, for appellant.

Jack J. Gautier, Dist. Atty., Fred M. Hasty, Macon, for appellee.

Syllabus Opinion by the Court

DEEN, Judge.

After the motion for new trial with the previously filed brief of evidence was overruled, appellant filed his notice of appeal on November 16, 1970. The bill for costs was tendered him on November 27 but not paid until January 21, 1971, and the appeal was then mailed on January 25. The clerk of court certified that 'all records of this case have been ready for transmittal to the Court of Appeals since November 27, 1970 * * * Costs were not paid until January 21, 1971. For that reason we are 45 days late with this record.' Thus, the total elapsed time between the filing of the notice of appeal and the mailing of the record was 70 days, 25 of which were chargeable to the clerk and the additional 45 to the plaintiff's tardiness in paying costs.

Code Ann. § 6-809(b) as amended by Ga.L.1968, pp. 1072, 1073 provides that 'the trial court may order the appeal dismissed where there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that such delay was inexcusable and was caused by the failure of a party to pay costs in the trial court or file pauper's affidavit.'

This court held in Lake Spivey Parks v. Jones, 118 Ga.App. 60, 62, 162 S.E.2d 801, 802, that under this Code section 'the failure of a party to pay costs in the trial court or file pauper's affidavit-is a ground for dismissal of the appeal by the trial court, but not by the appellate court.' That the statute does not oust the jurisdiction of the appellate court, however, becomes obvious from the subsequent case of Kilgo v. Cochran, 225 Ga. 477, 169 S.E.2d 818 where the appeal was dismissed under similar circumstances because of a fifteen day delay. In an analogous situation-where the record was forwarded to this court but the costs were as a matter of fact not paid in the trial court-this court at first refused to dismiss, but, after the decision of the Supreme Court in Howard v. Mitcham, 224 Ga. 288, 161 S.E.2d 291, we reversed our decision and followed Howard in holding that an appeal transmitted without payment of costs must be considered inadvertently transmitted, and that the failure to pay costs was cause...

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9 cases
  • Continental Inv. Corp. v. Cherry
    • United States
    • Georgia Court of Appeals
    • October 13, 1971
    ...case. It has been suggested in our previous decisions that a delay of over thirty days may prima facie be so considered. Jones v. State, 123 Ga.App. 672, 182 S.E.2d 190; Lake Spivey Parks, Inc. v. Jones, 118 Ga.App. 60(1b), 162 S.E.2d 801. In considering whether a period of less than thirty......
  • McCORVEY DEVELOPMENT v. DG JENKINS DEV., A03A0620.
    • United States
    • Georgia Court of Appeals
    • March 13, 2003
    ...and inexcusable. (Citation omitted.) See Bouldin v. Parker, 173 Ga.App. 526, 527, 327 S.E.2d 760 (1985). See also Jones v. State, 123 Ga.App. 672, 182 S.E.2d 190 (1971) (45 day delay was unreasonable and inexcusable). Even so, such a delay is not conclusively unreasonable or inexcusable and......
  • Cousins Mortg. & Equity Investments v. Hamilton
    • United States
    • Georgia Court of Appeals
    • September 14, 1978
    ...of an unreasonable and inexcusable delay. Continental Invest. Corp. v. Cherry, 124 Ga.App. 863, 865, 186 S.E.2d 301; Jones v. State, 123 Ga.App. 672, 182 S.E.2d 190; Lake Spivey Parks v. Jones, 118 Ga.App. 60 (1b), 162 S.E.2d 801. In a factually similar case, Servall, Inc. v. Southern Cross......
  • Hooper v. Southern Bell Tel. & Tel. Co., A90A0632
    • United States
    • Georgia Court of Appeals
    • May 14, 1990
    ...and inexcusable. Continental Inv. Corp. v. Cherry, 124 Ga.App. 863, 865(1), 186 S.E.2d 301 (1971). See also Jones v. State, 123 Ga.App. 672, 182 S.E.2d 190 (1971). Hooper did not pay the costs until seventy-two days after the filing of the notice of appeal and fifty-four days after receipt ......
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