Servall, Inc. v. Southern Cross Industries, Inc.

• Decision Date: 19 November 1971
• Docket Number: Nos. 46686,46718,No. 3,s. 46686,3
• Parties: SERVALL, INC. v. SOUTHERN CROSS INDUSTRIES, INC. SOUTHERN CROSS INDUSTRIES, INC. v. SERVALL, INC
• Court: Georgia Court of Appeals

Page 499

186 S.E.2d 499

125 Ga.App. 88

SERVALL, INC. v. SOUTHERN CROSS INDUSTRIES, INC.

SOUTHERN CROSS INDUSTRIES, INC. v. SERVALL, INC.

Nos. 46686, 46718.

Court of Appeals of Georgia, Division No. 3.

Nov. 19, 1971.

Arthur P. Tranakos, Atlanta, for appellant.

Kilpatrick, Cody, Rogers, McClatchey & Regenstein, A. Stephens Clay, Atlanta, for appellee.

Syllabus Opinion by the Court

EBERHARDT, Judge.

Servall, Inc., filed its complaint against Southern Cross Industries, Inc., which answered, counterclaimed, and moved for summary judgment. The trial court granted Southern Cross' motion and rendered judgment in its favor against Servall both on the main complaint and on the counterclaim.

Servall filed its notice of appeal on March 5, 1971. Because of stress of work in the clerk's office, the record was not ready for transmittal to this court until April 7, at which time the clerk billed Servall's counsel of record as shown on the docket and pleadings, Mr. William R. Hurst, Tranakos & Hurst, 215 Peachtree Center Building, Atlanta, for the costs of preparing the record for appeal. The envelope in which the bill was sent showed the clerk's return address, but as late as July 26, some 110 days later, the costs had not been paid, a pauper's affidavit had not been filed, nor had the bill or envelope been returned to the clerk. Accordingly, on July 26, Southern Cross moved in the trial court to dismiss Servall's notice of appeal pursuant to Section 13(b) of the Appellate Practice Act (Code Ann. § 6-809(b)) for failure to pay the costs or file pauper's affidavit. As of August 23, in spite of Southern Cross' motion to dismiss the appeal filed and served some 28 days earlier, Servall had still failed to pay the costs or file pauper's affidavit. The costs were finally paid on August 24, the motion to dismiss the appeal was denied on that date, and the appeal was transmitted to and docketed in this court on August 25, a delay of some 140 days since the bill for costs was sent to Servall's counsel.

In Case No. 46718, Southern Corss appeals with a certificate from the trial court's denial of its motion to dismiss Servall's appeal in Case No. 46686. Held:

Section 13(b) of the Appellate Practice Act, as amended by Ga.L. 1968, pp. 1072, 1073 (Code Ann. § 6-809(b)), provides in part as follows: '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.' The only excuse offered here in defense of Servall's delinquency is a letter from William R. Hurst to the trial court dated August 10, some two weeks after the motion to dismiss was filed and served, in which he stated that he and Mr. Tranakos had dissolved their law partnership shortly after the filing of the notice of appeal; that Tranakos was to retain the file and pursue the matter from that point; that 'a snag cropped up in the deal' when disputes broke out between the two as to the handling of files, etc.; that both lawyers had received mail in regard to the various files that they had been handling; that Hurst felt that the bill had been overlooked because of the confusion between the two lawyers in regard to their files; and that proper counsel of record was now Tranakos, whose address remained 215 Peachtree Center Building, Atlanta.

Under the circumstances of this case, there has clearly been an unreasonable, inexcusable delay in the transmission of the record to this court caused by the failure of Servall or its counsel to pay the costs. Accordingly, the appeal in Case No. 46686 must be dismissed. George v. American Credit Control, 222 Ga. 512, 150 S.E.2d 683; Vezzani v. Vezzani, 222 Ga. 853, 153 S.E.2d 161; Mutual Fed. Savings & Loan &c. v. Johnson, 223 Ga. 811, 158 S.E.2d 762; Pippins v. Securities Investment Co. of Atlanta, 223 Ga. 812, 158 S.E.2d 675; U-Haul Co. v. A. Trailer & Truck Rentals, Inc., 225 Ga. 195, 167 S.E.2d 135; Kilgo v. Cochran, 225 Ga. 477, 169 S.E.2d 818; Jacobs v. Shiver, 226 Ga. 284, 174 S.E.2d 415; Jackson v. Mayor Etc....