Williford v. General Insurance Co. of America

Court of Appeals of Georgia

Williford v. General Insurance Co. of America

165 S.E.2d 924, 119 Ga. App. 1, 1969 Ga. App. LEXIS 951

CourtCourt of Appeals of Georgia

DecidedJanuary 6, 1969

Docket44078

StatusPublished

Cited by9 cases

This text of 165 S.E.2d 924 (Williford v. General Insurance Co. of America) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Williford v. General Insurance Co. of America, 165 S.E.2d 924, 119 Ga. App. 1, 1969 Ga. App. LEXIS 951 (Ga. Ct. App. 1969).

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Opinions

Pannbll, Judge.

The present case is before this court on an appeal from an order of the superior court dismissing a prior appeal from the judgment of that court affirming the award of the Board of Workmen’s Compensation denying compensation to the appellant. Held:

1. Section 2 of thé amendment of 1968 to the Appellate Practice Act enacted a new Section 13 (b) which provides in part that: “the trial court may order the appeal dismissed where there has been an unreasonable delay in the transmission of the record to the appellate court-, and it is seen that such delay was inexcusable and was caused by the failure of a party to pay costs in the trial court or file pauper’s affidavit.” This Act became effective April 8, 1968 (Ga. L. 1968, pp. 1072, 1073) and applies to an appeal in the present case filed April 18, 1968, although the judgment appealed from was entered prior to the effective date.

2. Where, on motion to dismiss such appeal, a hearing is had and evidence is introduced which would authorize a trial judge to find that the notice of appeal was filed April 18, 1968, and on the same date an order was taken extending the time for transmitting the record to this court for a period of 30 days, that because of the press of business in the clerk’s office the record was not completed until May 28, 1968, and that a deputy clerk notified counsel for appellant of the [2]*2amount of the costs on the same day or the next day, and several other times, the last of which was June 27, 1968, that the motion to dismiss the appeal was filed on July 2, 1968, copy of which was received by counsel for appellant on July 5, 1968, and that the costs were paid by check dated July 3, 1968, received by the clerk on July 5, 1968, through the mails, and it appears that counsel for appellant stated he was notified of the amount of costs by the clerk “the first part of June” and that the delay thereafter was caused by his inability to contact his client and the time the client took to get up the money to pay the costs, this court cannot say that the judge of the superior court was in error in dismissing the appeal because of the delay in forwarding the record to this court caused by the appellant and her counsel. See in this connection Fahrig v. Garrett, 224 Ga. 817 (165 SE2d 126); Hardy v. D. G. Machinery & Gage Co., 224 Ga. 818 (165 SE2d 127); Mutual Fed. Savings &c. Assn. v. Johnson, 223 Ga. 811 (158 SE2d 762); George v. American Credit Control, 222 Ga. 512 (150 SE2d 683); Vezzani v. Vezzani, 222 Ga. 853 (153 SE2d 161); Pippins v. Securities Investments Co. of Atlanta, 223 Ga. 812 (158 SE2d 675). The delay here caused the case to be heard at a call later than the one at which it would have been heard if it had been transmitted when ready; therefore, the ruling of this court in Hornsby v. Rodriguez, 116 Ga. App. 234 (156 SE2d 830), has no application, even should it be considered as binding upon this court in view of the above decisions.

Submitted November 6, 1968 Decided January 6, 1969. Walter 0. Allanson, for appellant. O’Kelley, Hopkins & Van Gerpen, H. Lowell Hopkins, for appellees.

3. Enumerations of error properly applicable to the appeal dismissed will not be considered by this court on the present appeal.

Judgment affirmed.

Deen, J., concurs. Jordan, P. J., concurs specially.

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Pannbll, Judge.

The present case is before this court on an appeal from an order of the superior court dismissing a prior appeal from the judgment of that court affirming the award of the Board of Workmen’s Compensation denying compensation to the appellant. Held:

1. Section 2 of thé amendment of 1968 to the Appellate Practice Act enacted a new Section 13 (b) which provides in part that: “the trial court may order the appeal dismissed where there has been an unreasonable delay in the transmission of the record to the appellate court-, and it is seen that such delay was inexcusable and was caused by the failure of a party to pay costs in the trial court or file pauper’s affidavit.” This Act became effective April 8, 1968 (Ga. L. 1968, pp. 1072, 1073) and applies to an appeal in the present case filed April 18, 1968, although the judgment appealed from was entered prior to the effective date.

2. Where, on motion to dismiss such appeal, a hearing is had and evidence is introduced which would authorize a trial judge to find that the notice of appeal was filed April 18, 1968, and on the same date an order was taken extending the time for transmitting the record to this court for a period of 30 days, that because of the press of business in the clerk’s office the record was not completed until May 28, 1968, and that a deputy clerk notified counsel for appellant of the [2]*2amount of the costs on the same day or the next day, and several other times, the last of which was June 27, 1968, that the motion to dismiss the appeal was filed on July 2, 1968, copy of which was received by counsel for appellant on July 5, 1968, and that the costs were paid by check dated July 3, 1968, received by the clerk on July 5, 1968, through the mails, and it appears that counsel for appellant stated he was notified of the amount of costs by the clerk “the first part of June” and that the delay thereafter was caused by his inability to contact his client and the time the client took to get up the money to pay the costs, this court cannot say that the judge of the superior court was in error in dismissing the appeal because of the delay in forwarding the record to this court caused by the appellant and her counsel. See in this connection Fahrig v. Garrett, 224 Ga. 817 (165 SE2d 126); Hardy v. D. G. Machinery & Gage Co., 224 Ga. 818 (165 SE2d 127); Mutual Fed. Savings &c. Assn. v. Johnson, 223 Ga. 811 (158 SE2d 762); George v. American Credit Control, 222 Ga. 512 (150 SE2d 683); Vezzani v. Vezzani, 222 Ga. 853 (153 SE2d 161); Pippins v. Securities Investments Co. of Atlanta, 223 Ga. 812 (158 SE2d 675). The delay here caused the case to be heard at a call later than the one at which it would have been heard if it had been transmitted when ready; therefore, the ruling of this court in Hornsby v. Rodriguez, 116 Ga. App. 234 (156 SE2d 830), has no application, even should it be considered as binding upon this court in view of the above decisions.

Submitted November 6, 1968 Decided January 6, 1969. Walter 0. Allanson, for appellant. O’Kelley, Hopkins & Van Gerpen, H. Lowell Hopkins, for appellees.

3. Enumerations of error properly applicable to the appeal dismissed will not be considered by this court on the present appeal.

Judgment affirmed.

Deen, J., concurs. Jordan, P. J., concurs specially.

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165 S.E.2d 924, 119 Ga. App. 1, 1969 Ga. App. LEXIS 951, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williford-v-general-insurance-co-of-america-gactapp-1969.

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