Vaughan v. Buice

• Court: Georgia Supreme Court
• Writing for the Court: MARSHALL; All the Justices concur, except SMITH
• Citation: Vaughan v. Buice, 253 Ga. 540, 322 S.E.2d 282 (Ga. 1984)
• Decision Date: 16 November 1984
• Docket Number: No. 41497,41497
• Parties: VAUGHAN v. BUICE et al.

Page 282

322 S.E.2d 282

253 Ga. 540

VAUGHAN v. BUICE et al.

No. 41497.

Supreme Court of Georgia.

Nov. 16, 1984.

B.J. Roberts, Krebs & Associates, P.C., Decatur, for J. Harold vaughan.

William H. Major, Heyman & Sizemore, Atlanta, Richard S. Gault, Larry H. Boling, Boling & Rice, Harry M. Moseley, Shinall, Kell & Moseley, Cumming, for Russell L. Buice et al.

MARSHALL, Presiding Justice.

In this quia timet action, the trial court entered an order on July 7, 1983, granting summary judgment to the defendants-appellees. The plaintiff-appellant filed a timely notice of appeal on August 19, 1983. Counsel for the plaintiff received a statement of costs for preparation of the record no later than September 1, 1983. On October 25, 1983, the defendants filed a motion to dismiss the appeal pursuant to OCGA § 5-6-48(c).

On November 18, 1983--at least 79 days after having been informed of the costs, 23 days after the defendants filed their motion to dismiss the appeal, and three days prior to the hearing on the motion to dismiss--the plaintiff paid the costs.

The trial court found that the plaintiff testified that his failure to pay costs was primarily the result of "miscommunication" between his attorney and him, and the death of his father. The trial court also found that the evidence also indicated that the plaintiff made statements to the clerk to the effect that he had not paid the costs because he did not have the money; however, the plaintiff did not file a pauper's affidavit. The trial court, in the exercise of its discretion, found the reasons neither reasonable nor excusable, and dismissed the appeal.

" 'Where, as here, there is no transcript (none having been requested) and no agreed statement of the facts [is] furnished [OCGA § 5-6-41(g) ], the appellate court is bound to assume that the trial court...