Addis v. FIRST KINGSTON CORPORATION , 225 Ga. 231 ( 1969 )

225 Ga. 231 (1969) 167 S.E.2d 656

ADDIS
v.
FIRST KINGSTON CORPORATION et al.

25119.

Supreme Court of Georgia.

Argued April 16, 1969. Decided April 24, 1969.

Archer, Patrick & Sidener, James H. Archer, Jr., Ezra E. Phillips, for appellant.

Long & Siefferman, Calhoun A. Long, Floyd E. Siefferman, Jr., for appellees.

ALMAND, Presiding Justice.

This appeal is from an order granting a mandamus absolute. The following errors are enumerated: (a) the failure of the court to grant the appellant's oral motion to dismiss the appellees' complaint, (b) the refusal to admit a zoning map into evidence, and (c) the granting of a mandamus absolute.

A motion has been filed to dismiss the appeal because the transcript of the evidence was not filed within 30 days after the filing of the notice of appeal as required by Code Ann. § 6-806.

The record discloses that the appellant's notice of appeal from the order granting the mandamus absolute, on September 6, 1968, was filed on September 23, 1968. No order extending the time for filing the transcript was obtained until October 24, 1968, which was the thirty-first day after the notice of appeal was filed. In this order, an extension of 30 days was granted. This extension expired on November 23, 1968. On January 10, 1969, the court entered an order granting an extension of sixty days from November 23, 1968, and on January 24, 1969, a 30-day extension was granted from January 22, 1969. The transcript was filed in the office of the clerk on February 6, 1969. Held:

1. The enumerated error to the effect that the court erred in refusing to grant the appellant's oral motion to dismiss the complaint cannot be considered because such motions must be in writing (Code Ann. § 81A-107 (b)), and the order granting or refusing the motion must be in writing (Code Ann. § 81A-158 (a)), and the record does not disclose any order denying a motion to dismiss.

2. The transcript of the evidence not having been filed within the time provided for by law, the motion to dismiss must be sustained. Fahrig v. Garrett, 224 Ga. 817 (165 SE2d 126).

Appeal dismissed. All the Justices concur.