Dampier v. FIRST BANK & TRUST COMPANY

266 S.E.2d 539, 153 Ga. App. 756, 1980 Ga. App. LEXIS 1966

• Court: Court of Appeals of Georgia
• Decided: March 6, 1980
• Docket: 59337
• Status: Published

Opinion

Shulman, Judge.

Plaintiffs motion to dismiss defendant’s appeal was granted on the basis of defendant’s failure to timely file a transcript in accordance with Code Ann. § 6-806.

Argued February 13, 1980 Decided March 6, 1980. Frank G. Smith, for appellant. Joseph C. Parker, for appellee.

Since defendant filed his notice of appeal on May 15, 1978, it was incumbent upon him to file a transcript for appeal within 30 days, on or before July 14, 1978. When such transcript was not timely filed, plaintiff brought its motion on July 26, 1978, to dismiss defendant’s appeal. Although defendant admits that he did not seek an extension of time in which to file the transcript, he submits that inasmuch as he was not personally responsible for the delay (since the delay in filing, at least up until the time of plaintiffs July 26 motion, was due to the fact that the transcript had not yet been prepared by the court reporter), the court erred in granting plaintiffs motion to dismiss. We disagree.

Even assuming that defendant himself was not personally at fault for the delay (that he timely paid for the filing of the transcript), the fact that the initial delay in the preparation of the transcript may not have been the fault of the defendant does not excuse the filing delay, in the absence of a proper request by the defendant for an extension of time. (See Code Ann. § 6-804.)

The trial judge determined that there had been an unreasonable delay in filing the transcript and that said delay was inexcusable and caused by the appellant. Code Ann. § 6-809 (b). See also Middleton v. Continental Dev. Corp., 153 Ga. App. 144.

This being so, the trial court was authorized to dismiss defendant’s appeal.

Judgment affirmed.

Quillian, P. J., and Carley, J., concur.