Rogers v. International Mineral & Chemical Corp., 44329
| Decision Date | 08 July 1969 |
| Docket Number | No. 44329,No. 3,44329,3 |
| Citation | 120 Ga.App. 54,169 S.E.2d 659 |
| Parties | Robert ROGERS v. INTERNATIONAL MINERAL & CHEMICAL CORPORATION et al |
| Court | Georgia Court of Appeals |
Dan S. Beeland, Columbus, Garland T. Byrd, Butler, for appellant.
Perry, Walters, Langstaff, Lippitt & Campbell, Robert B. Langstaff, Albany, for appellees.
Syllabus Opinion by the Court
'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.' Code Ann. § 24-2729 (Ga.L.1889, p. 104; 1933, p. 368).
There has been a motion made to this court to dismiss the present appeal for failure of the appellant to pay the costs for preparing the transcript to the clerk or to make a pauper's affidavit. Attached to the motion to dismiss is an affidavit of the clerk of the court below and it states the following:
'Now comes R. C. Bowen, after being duly sworn, who deposes and says that he is the duly qualified and acting clerk of Tift Superior Court and that at the time of the transmission of the transcript in the above stated matter, the costs for preparing the transcript of the record had not been paid by the appellant and, as of the date of this affidavit, said costs still remain unpaid.
'This the 3rd day of April, 1969.
'S/ R. C. Bowen, Clerk of Tift Superior Court.
'(Notary Public signature and seal.)'
This court has received such motions in the past. In Aetna Casualty & Surety Co. v. Sampley, 108 Ga.App. 617, 618(1), 134 S.E.2d 71, 73, there was neither a certificate of payment nor a pauper's affidavit in the record. This court held, in denying the motion to dismiss, that: 'The clerk, like other public officials, is presumed to have performed his duty at the time and in the manner prescribed by law * * * and here his duty, as well as his own self-interest, is to make sure the costs are paid before transmitting the appeal.' (Citations omitted.) In City of Atlanta v. Akins, 116 Ga.App. 230(1), 156 S.E.2d 665 and American Casualty Co. v. Smith, 116 Ga.App. 332(1), 157 S.E.2d 312, motions to dismiss the appeals for nonpayment of costs in the court below were denied on the ground, simply stated, that payment of costs is a problem to be policed by the trial courts; that it does not affect the jurisdictional basis of this court and that so long as the appeal is timely filed in this court its jurisdiction in this regard is perfected, irrespective of whether or not the costs below have been paid....
To continue reading
Request your trial
-
Elliott v. Walton
...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 transmitted to this court and is not now before us. 'True, had the clerk as......
-
Jones v. State
...be considered inadvertently transmitted, and that the failure to pay costs was cause for dismissal. See Rogers v. International Mineral & Chemical Corp., 120 Ga.App. 54, 169 S.E.2d 659. It would be illogical to say that a case actually here although costs had not been paid in the trial cour......