Sellers v. Nodvin

• Decision Date: 11 May 1992
• Docket Number: No. S92G0203,S92G0203
• Citation: 262 Ga. 205,415 S.E.2d 908
• Parties: SELLERS et al. v. NODVIN et al.
• Court: Georgia Supreme Court

Page 908

415 S.E.2d 908

262 Ga. 205

SELLERS et al. v. NODVIN et al.

No. S92G0203.

Supreme Court of Georgia.

May 11, 1992.

Fred L. Cavalli, Decatur, for Sellers et al.

Richard A. Gordon, Marvin P. Nodvin, The Nodvin Firm, Atlanta, for Nodvin et al.

WELTNER, Presiding Justice.

The trial court dismissed Sellers' appeal for failure to file a transcript in a timely manner, pursuant to OCGA § 5-6-48. ¹ We granted certiorari to consider "whether the Court of Appeals applied the correct standard to determine whether the delay was unreasonable." Sellers v. Nodvin, 201 Ga.App. 550, 411 S.E.2d 723 (1991).

1. (a) In Young v. Climatrol Southeast Distributing Corp., 237 Ga. 53, 226 S.E.2d 737 (1976), we stated:

Under the Appellate Practice Act, the dismissal of an appeal is not mandatory except for the three specific instances contained in [OCGA § 5-6-48(c) ]. All three relate to dismissals by the appellate courts. The provision authorizing the trial court to dismiss an appeal specifies that two elements must be present: One is that the delay was unreasonable and the other is that the unreasonable delay was inexcusable. In passing upon these issues, the trial court has discretion; however, it is a legal discretion which is subject to review in the appellate courts. [Cit.] ....

In considering the question of unreasonable delay, it should be remembered that the time provided for filing the transcript or record is not jurisdictional, but merely a means of avoiding unreasonable delay so that the case can be presented on the earliest possible calendar in the appellate courts. [Id. at 55, 226 S.E.2d 737.]

Compare Baker v. Southern Railway Co., 260 Ga. 115, 390 S.E.2d 576 (1990). ²

(b) In Galletta v. Hillcrest Abbey West, Inc., 185 Ga.App. 20(1), 363 S.E.2d 265 (1987), the Court of Appeals stated:

[T]he threshold question whether the delay was unreasonable ... refers principally to the length and effect of the delay. OCGA § 5-6-48(c). See Young v. Climatrol etc. Distrib. Co., 237 Ga. 53, 55 (226 S.E.2d 737). As to this question the determination of the trial court is a matter of legal discretion and is subject to review by the appellate courts. Id.

The time requirements of OCGA § 5-6-42 for filing the transcript are not jurisdictional, but are merely a means of avoiding delay so the case can be presented on the earliest possible calendar in the appellate courts. [Cit.] OCGA § 5-6-30 provides that the appellate practice article shall be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case except as may be specifically referred to in the article. The section requiring filing of the transcript within 30 days ( § 5-6-42) is specifically designed to facilitate an appellate decision on the merits at the earliest possible date. [Cit.] Since it is not a jurisdictional requirement, the demand for punctuality should not be so strict as to defeat the very purpose of the requirement by preventing an appeal altogether, unless the delay is unreasonable so as to affect the appeal itself. See Gilland v. Leathers, 141 Ga.App. 680 (234 S.E.2d 338) [1977]. Thus the policy of the law is to avoid a dismissal of the appeal and reach the merits of the case where it is reasonable to do so. [Cit.] [Id., 185 Ga.App. at 21-22, 363 S.E.2d 265.]

The court noted that in that case, although the transcript was 11 days late,

[t]here is no intimation that the appellee suffered any prejudice by this 11-day delay. The appeal was not stale; justice was not delayed nor had any inequity resulted, nor was there any intermediate change in conditions. [Cit.] There is no indication the 11-day delay in filing the transcript prevented the placement of the case on the earliest possible calendar in this court [cit.] or delayed the docketing of the appeal and the hearing of the case in this court. [Cit.] The record from the clerk below was in fact not docketed in this court until ... three and one-half months after the transcript was filed. Under these circumstances, it is difficult to conclude appellants' 11-day delay in paying for and filing the transcript, however inexcusable, was so unreasonable as to utterly remove their right of appeal. [Id. at 22, 363 S.E.2d 265.]

See also McDonald v. Garden Services, 251 Ga. 337, 304 S.E.2d 914 (1983), Justice Bell, dissenting, joined by two justices, which urges similar criteria as a standard for determining the reasonableness of delay.

2. (a) The trial court held:

After evidence and argument, the Court finds that Defendants [Sellers] failed to timely file the transcript, that Defendants failed to obtain an extension of time for the filing of the transcript and that the delay in the filing of the transcript was both unreasonable and inexcusable, especially in view of the consistent conduct of Defendants in seeking to delay this case.

(b) The uncontradicted evidence at the hearing was that the delay in filing the transcript did not delay transmission of the record to the Court of Appeals. ³

3. That being so, and there being no evidence of any of the other elements mentioned in Galletta, the trial court's express finding that the delay was unreasonable so as to warrant dismissal was inappropriate under the standard set in Galletta.

Judgment reversed.

All the Justices concur.

1 OCGA § 5-6-48(c) provides:

No appeal shall be dismissed by the appellate court nor consideration of any error therein refused because of failure of any party to cause the transcript of evidence and proceedings to be filed within the time allowed by law or order of court; but the trial court may, after notice and...