Rewis v. Shaw

• Decision Date: 08 June 1993
• Docket Number: No. A93A0803,A93A0803
• Citation: 432 S.E.2d 617,208 Ga. App. 876
• Parties: REWIS v. SHAW.
• Court: Georgia Court of Appeals

Page 617

432 S.E.2d 617

208 Ga.App. 876

REWIS v.SHAW.

No. A93A0803.

Court of Appeals of Georgia.

June 8, 1993.

Dubberly & McGovern, Joseph D. McGovern, Glennville, for appellant.

Stephen H. Harris, Savannah, for appellee.

BEASLEY, Presiding Judge.

This is a continuation of Shaw v. Hughes, 199 Ga.App. 212, 404 S.E.2d 309(1991), andHughes v. Hughes, 193 Ga.App. 72, 387 S.E.2d 29(1989).

Pennie Shaw, formerly Hughes, sued her former husband, who filed a counterclaim.Hughes v. Hughes held that the trial court erred in dismissing the counterclaim.On the trial of the counterclaim, the former husband, Hughes, was awarded the judgment.

Shaw filed a notice of appeal, requesting that nothing be omitted from the record which, excluding the transcript, totaled 600 pages.The clerk made one copy of the record to be sent to this court, as well as a duplicate copy to be retained by the clerk as required by OCGA § 5-6-41(e).Based on her interpretation of OCGA § 15-6-77(g)(12), the clerk billed Shaw an $1,800 charge for making two copies of the 600-page record at a cost of $1.50 per page.Shaw paid these court costs under protest.

Shaw v. Hughes affirmed the judgment.Following entry of the remittitur, Shaw filed a motion for reimbursement of court costs paid under protest, arguing that under OCGA § 15-6-77(g)(12) the clerk should have only charged $900 for preparing the record to be sent to this court and was not authorized to charge the additional $900 for preparing the copy of the record to be retained by the clerk.The superior court agreed and granted her motion.The clerk, who is not a party, seeks to appeal through the former husband, who is a party.The clerk is the real party in interest; she is substituted as such, and Shaw's current name is substituted for the former name.

OCGA § 5-6-43(a) provides, "it shall be the duty of the clerk of the trial court to prepare a complete copy of the entire record of the case, omitting only those things designated for omission by the appellant and which were not designated for inclusion by the appellee, ... and transmit the same, together with the transcript of evidence and proceedings, to the appellate court....The clerk need not recopy the transcript of evidence and proceedings to be sent up on appeal but shall send up the reporter's original and retain the copy, as referred to in Code Section 5-6-41; and it shall not be necessary that the transcript be renumbered as a part of the record on appeal.The clerk shall retain an exact duplicate copy of all records and the transcript sent up, with the same pagination, in his office as a permanent record."

"One of the purposes of this requirement is to afford local counsel in the county where the case was tried convenient access to the exact duplicate copy of the record [sent on appeal] so as to enable [counsel] to easily ascertain the proper references to be included in his brief and written argument to this court."Law v. Smith, 226 Ga. 298, 300, 174 S.E.2d 893(1970).The same applies to this court.Although this could be achieved more efficiently and less costly by simply retaining the original in the clerk's office until the time for briefs (plus any extensions) has expired and then sending the original to the appellate court, to be returned after the conclusion of proceedings there, the law in OCGA § 5-6-43 prescribes otherwise.

OCGA § 15-6-77(g)(12) authorizes the...