Howard v. MITCHAM, Sheriff

224 Ga. 288 (1968) 161 S.E.2d 291

HOWARD
v.
MITCHAM, Sheriff, et al.

24548.

Supreme Court of Georgia.

Submitted March 12, 1968. Decided April 9, 1968. Rehearing Denied April 22, 1968.

Hubert H. Howard, for appellant.

Thomas E. Dawson, R. L. Dawson, for appellees.

FRANKUM, Justice.

The notice of appeal in this case was filed in the office of the clerk of this court on February 7, 1968. On March 25, 1968, after the case had been submitted on briefs without oral argument, a certificate of the Clerk of the Superior Court of Long County, dated March 22, 1968, was filed in the office of the clerk of this court, which certificate shows that the costs due to have been paid to the clerk of the superior court before transmittal of the record to this court had not been paid as of the date of the certificate. The certificate further shows that the record was prepared by a deputy clerk who presented it to the clerk for certification, who certified the same on the assumption that the deputy clerk had collected the costs; and that "no proper affidavit denying the ability of the appellant to pay" the costs had been filed. The appellees have filed a motion to dismiss the appeal based upon the contents of the certificate. Code Ann. § 24-2729 as amended by the Act of 1963 (Ga. L. 1963, p. 368) provides: "In all cases certified to the appellate courts, the costs for preparing the transcript of the record shall be paid by the appellant to the clerk before the same shall be transmitted, unless the appellant makes affidavit that he is unable to pay such costs or give security therefor." The case of Galloway v. Merrill, 213 Ga. 633 (2) (100 SE2d 433), relied upon by the appellant in opposition to the motion to dismiss was decided prior to the 1963 Act amending Code § 24-2729. That Act eliminated the basis for the ruling in the case relied upon and other cases of similar import, and that case, therefore, is not authority for a contrary ruling. Under the facts appearing in the certificate of the clerk, it is apparent the appeal was inadvertently transmitted to this court by the clerk of the trial court at a time when he was not authorized by law to transmit it and under the provisions of the Code section above quoted, the appeal is improperly here and must be dismissed.

Appeal dismissed. All the Justices concur, except Mobley and Undercofler, JJ., who dissent.