Threatt v. McElreath

223 Ga. 153 (1967) 154 S.E.2d 20

THREATT
v.
McELREATH.

23955.

Supreme Court of Georgia.

Argued February 15, 1967. Decided February 23, 1967.

Stephens Mitchell, Alford Wall, for appellant.

Hansell, Post, Brandon & Dorsey, W. Rhett Tanner, Gary W. Hatch, for appellee.

UNDERCOFLER, Justice.

Appellee filed a motion to dismiss the appeal in this case for the reason that the transcript of evidence was not filed within the time prescribed by law. The record shows that on May 19, 1966, a judgment was entered in the trial court and on June 15, 1966, a notice of appeal was duly filed therein; that the transcript of evidence was filed on January 11, 1967, and that no application had been made for an extension of time for the filing of the transcript of evidence. The trial judge entered an order on January 13, 1967, which stated that, "through no fault of the appellant, the court reporter did not complete the transcript of the evidence in this case until 11 January, 1967" and that the appellant was excused from the delay occasioned by the court reporter. Held:

Under the provisions of the Appellate Practice Act of 1965, pp. 18, 21 (Code Ann. § 6-804), the appellant in this case could have applied to any judge of the trial court for an extension of time for filing the transcript of the evidence (required to be filed within 30 days by § 11 of the Act of 1965, pp. 18, 26; Code Ann. § 6-806). Code Ann. § 6-804 also provides that "any application ... for an extension must be made before expiration of the period for filing as originally prescribed." The record in this case conclusively shows that no request for an extension of time was made before the expiration of the period for filing such transcript of evidence and accordingly the trial judge had no authority to excuse the appellant for his failure to follow the mandatory provisions of this Code section. Therefore the appeal must be dismissed. Davis v. Davis, 222 Ga. 579 (151 SE2d 123).

Appeal dismissed. All the Justices concur.