Allen v. SEABOARD COAST LINE RAILROAD COMPANY , 128 Ga. App. 391 ( 1973 )

128 Ga. App. 391 (1973) 196 S.E.2d 878

ALLEN
v.
SEABOARD COAST LINE RAILROAD COMPANY et al.

47734.

Court of Appeals of Georgia.

Submitted January 11, 1973. Decided February 2, 1973. Rehearing Denied March 5, 1973.

John S. Boswell, Sr., for appellant.

Alexander, Vann & Lilly, William U. Norwood, Coleman, Blackburn, Kitchens & Bright, J. Converse Bright, for appellees.

EBERHARDT, Presiding Judge.

Benjamin Allen brought suit for personal injuries against Seaboard Coast Line Railroad Company and W. A. Gooch Lumber Company, and at the trial verdicts were directed for both defendants. Plaintiff filed his notice of appeal from the judgments for defendants and obtained successive extensions of time through June 9, 1972 for filing the transcript. However, he failed to file the transcript or to apply for an additional extension of time; and the trial court, on motion of defendants and after hearing, dismissed the appeal. Code Ann. § 6-809 (b). Plaintiff then moved the court to set aside the order dismissing the appeal, which was denied. Plaintiff now appeals from the order dismissing the appeal, as well as from the judgments in favor of defendants. In the notice of appeal plaintiff specified that the transcript would not be filed for inclusion in the record on appeal, and apparently it has never been filed below. Held:

1. Plaintiff seeks to have the order dismissing the appeal, and the judgment for the railroad, set aside because its answer was not signed by defendant itself or its counsel. However, plaintiff raises the issue for the first time on appeal (see 2A Moore's Federal Practice § 11.02; 5 Wright & Miller, Federal Practice & Procedure § 1334) and no reversible error appears here.

2. Enumerations of error 2 and 3, which require a transcript for decision, show no reversible error. Nichols v. Love, 227 Ga. 659 (2) (182 SE2d 439).

3. The order dismissing the appeal, and the order denying the motion to set this order aside, are not uncertain as to which of the defendants the orders refer, since both orders refer to the motions of both defendants.

Since the plaintiff failed to obtain an extension of time before the time, as previously extended, expired, and failed to file the transcript of the evidence within the extended time, the trial judge was authorized to enter the dismissal of the appeal.

Judgments affirmed. Pannell and Stolz, JJ., concur.