White v. White

373 S.E.2d 824, 188 Ga. App. 556, 1988 Ga. App. LEXIS 1116

• Court: Court of Appeals of Georgia
• Decided: September 23, 1988
• Docket: 76980
• Status: Published

Opinion

McMurray, Presiding Judge.

When this court issues an order granting a discretionary appeal, the applicant must file a notice of appeal within ten days of the issuance of the order. OCGA § 5-6-35 (g). The timely filing of the notice of appeal is an absolute prerequisite in order to confer jurisdiction on this court. Moncrief v. Tara Apts., 162 Ga. App. 695 (293 SE2d 352).

In the case sub judice, an order was issued on February 5, 1988, granting a discretionary appeal in this child custody case. Appellant did not file a notice of appeal until February 17, 1988.

The Clerk of the Superior Court of Atkinson County has certified that that court was open for business on February 15 and 16, 1988. It appears, therefore, that the notice of appeal was filed two days late. Held:

Decided September 23, 1988. Mitchell 0. Moore, for appellant. William A. King, for appellees.

The burden is on the appellant to file his notice of appeal in a timely fashion. Rogers v. Rogers, 238 Ga. 576 (234 SE2d 495). “The burden is not satisfied by relying on the postal delivery but may be satisfied only by depositing the notice of appeal with the clerk within the appropriate time frame. Bank of Coweta v. Lee, 153 Ga. App. 33 (264 SE2d 526).” Moncrief v. Tara Apts., 162 Ga. App. 695, supra.

Appellant failed to satisfy the burden of timely filing the notice of appeal. Accordingly, we are without jurisdiction to consider this case. It must be dismissed.

Appeal dismissed.

Pope and Benham, JJ., concur.