Blumenau v. Citizens & Southern National Bank

228 S.E.2d 302, 139 Ga. App. 188, 1976 Ga. App. LEXIS 1730

• Court: Court of Appeals of Georgia
• Decided: July 1, 1976
• Docket: 52092
• Status: Published

Opinion

Quillian, Judge.

The judgment appealed from was entered on December 2, 1975. Under the applicable statute the notice of appeal "shall be filed within 30 days after entry of the appealable decision or judgment complained of.” Code Ann. § 6-803 (Ga. L. 1965, pp. 18, 21; 1966, pp. 493, 496; 1968, pp. 1072, 1077). Applying this requirement in conjunction with the rule set forth in Code § 102-102 (8) (Ga. L. 1958, pp. 388, 389; 1967, pp. 579, 580) (see Red Hill Lumber Co. v. Miller, 112 Ga. App. 882 (1) (146 SE2d 918); Thomas v. Allstate Ins. Co., 133 Ga. App. 193, 195 (210 SE2d 361)), the last day for filing the appeal was January 2, 1976.

The appellant urges that on January 2, 1976, the office of the Clerk of Cobb County was closed. However, the statute (Ga. L. 1967, p. 580; Code Ann. § 102-102 (8)) permits extra time only where there is "a public or legal holiday as set forth in an Act approved February 2,1945 (Ga. L. 1945, p. 123) [Code Ann. § 14-1809].” January 2, 1976, was not such a holiday.

Argued April 13, 1976 Decided July 1, 1976. Thomasson & Hardcastle, Richard E. Thomasson, for appellant. McClain, Mellen, Bowling & Hickman, Norman F. Miller, A. O. Bracey, III, for appellee.

"The burden was on the appellant to ascertain whether the clerk’s office was open for filing a timely notice of appeal on January 2, 1976. The burden was on the appellant to file a timely notice of appeal; he failed to carry this burden.” Camp v. Hamrick, 138 Ga. App. 61. Hence, this appeal filed on January 5,1976, was not timely and must be dismissed.

Appeal dismissed.

Deen, P. J., and Webb, J., concur.