Smith v. Smith

Court of Appeals of Georgia

Smith v. Smith

147 S.E.2d 466, 113 Ga. App. 111, 1966 Ga. App. LEXIS 985

Court of Appeals of Georgia·Decided February 10, 1966·No. 41809·Published·Cited by 6 cases

Opinion

Pannell, Judge.

1. “A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of” (§ 5 of the Appellate Practice Act of 1965, Ga. L. 1965, pp. 18, 21; Code Ann. § 6-803), (a) unless the time for filing is extended under the terms of § 6 of said Act (Code Ann. § 6-804), which, in part, is as follows: “Any judge of the trial court, or any justice or judge of the appellate court to which the appeal is to be taken may, in his discretion, and without motion or notice to the other party, grant extensions of time for the filing of . . . notice of appeal, . . . and provided further, only one extension of time shall be granted for filing of notice of appeal and notice of cross appeal, and the extension shall not exceed the time otherwise allowed by these rules for the filing of the notices initially. . . ”; or, (b) unless the last day of filing falls on Saturday or Sunday, in which event the time for filing is extended through the following Monday. Subsection 8 of Code § 102-102, as amended by the Act of 1958 (Ga. L. 1958, pp. 388, 389; Code Ann. § 102-102.)

2. Under § 6 of the Appellate Practice Act, neither the trial court nor this court has jurisdiction to grant an extension of more than 30 days for the filing of a notice of appeal.

3. It follows, therefore, that, even though the order in the present case extending the time for filing the notice of appeal be construed as granting more than 30 days extension, the notice of appeal, having been filed 71 days after entry of the appealable decision or judgment complained of, comes too late, and the motion to dismiss must be sustained. Windsor v. Southeastern Adjusters, 221 Ga. 329 (144 SE2d 739); Yost v. Gunby, 221 Ga. 552 (145 SE2d 575); Undercofler v. McLennan, 221 Ga. 613 (146 SE2d 635); Close v. Walker Land Corp., 221 Ga. 329, 330 (2) (145 SE2d 245); Stanford *112 v. Evans, Reed & Williams, 221 Ga. 331 (145 SE2d 504); Williams v. State, 112 Ga. App. 566 (145 SE2d 765); Rhett v. State, 112 Ga. App. 567 (145 SE2d 823).

Argued February 7, 1966 Decided February 10, 1966. Fred T. Allen, for appellant. W. D. Knight, E. R. Smith, Sr., for appellees.

Appeal dismissed.

Felton, C. J., and Frankum, J., concur.

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Pannell, Judge.

1. “A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of” (§ 5 of the Appellate Practice Act of 1965, Ga. L. 1965, pp. 18, 21; Code Ann. § 6-803), (a) unless the time for filing is extended under the terms of § 6 of said Act (Code Ann. § 6-804), which, in part, is as follows: “Any judge of the trial court, or any justice or judge of the appellate court to which the appeal is to be taken may, in his discretion, and without motion or notice to the other party, grant extensions of time for the filing of . . . notice of appeal, . . . and provided further, only one extension of time shall be granted for filing of notice of appeal and notice of cross appeal, and the extension shall not exceed the time otherwise allowed by these rules for the filing of the notices initially. . . ”; or, (b) unless the last day of filing falls on Saturday or Sunday, in which event the time for filing is extended through the following Monday. Subsection 8 of Code § 102-102, as amended by the Act of 1958 (Ga. L. 1958, pp. 388, 389; Code Ann. § 102-102.)

2. Under § 6 of the Appellate Practice Act, neither the trial court nor this court has jurisdiction to grant an extension of more than 30 days for the filing of a notice of appeal.

3. It follows, therefore, that, even though the order in the present case extending the time for filing the notice of appeal be construed as granting more than 30 days extension, the notice of appeal, having been filed 71 days after entry of the appealable decision or judgment complained of, comes too late, and the motion to dismiss must be sustained. Windsor v. Southeastern Adjusters, 221 Ga. 329 (144 SE2d 739); Yost v. Gunby, 221 Ga. 552 (145 SE2d 575); Undercofler v. McLennan, 221 Ga. 613 (146 SE2d 635); Close v. Walker Land Corp., 221 Ga. 329, 330 (2) (145 SE2d 245); Stanford *112 v. Evans, Reed & Williams, 221 Ga. 331 (145 SE2d 504); Williams v. State, 112 Ga. App. 566 (145 SE2d 765); Rhett v. State, 112 Ga. App. 567 (145 SE2d 823).

Argued February 7, 1966 Decided February 10, 1966. Fred T. Allen, for appellant. W. D. Knight, E. R. Smith, Sr., for appellees.

Appeal dismissed.

Felton, C. J., and Frankum, J., concur.

Smith v. Smith, 147 S.E.2d 466, 113 Ga. App. 111, 1966 Ga. App. LEXIS 985 (Ga. Ct. App. 1966).

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