Kilgo v. Cochran

225 Ga. 477 (1969) 169 S.E.2d 818

KILGO
v.
COCHRAN et al.

25285.

Supreme Court of Georgia.

Argued July 15, 1969. Decided September 8, 1969.

David S. Eisenberg, for appellant.

Ben F. Sweet, for appellees.

GRICE, Justice.

In this appeal from a judgment construing the provisions of a will, the appellee has moved to dismiss upon the ground that the record was not transmitted to this court within 20 days from the filing of the notice of appeal, as is required by the Appellate Practice Act where, as here, no transcript is to be sent up. Ga. L. 1965, pp. 18, 28, as amended (Code Ann. § 6-808). We regard the motion as meritorious, in view of the following.

On April 23, 1969, the notice of appeal was filed. It stated that no transcript was to be sent up. On April 29, 1969, the deputy clerk of the trial court mailed appellant's attorney a bill for costs for filing the notice of appeal and preparing the record on appeal. On May 28, immediately upon receipt of payment of such costs, the record was transmitted to this court, 15 days after expiration of the statutory 20-day period.

While the time from April 23 to April 29 was accounted for by the certificate of the trial court deputy clerk as being due to stress of work in that office, the subsequent delay until May 28, the date of transmittal of the record to this court, cannot be excused. There was no showing of any providential cause as to why such costs were not sooner paid so that the record could be transmitted by May 13, within the 20-day statutory period from April 23, the date the notice of appeal was filed. See U-Haul Co. v. A Trailer &c. Rentals, 225 Ga. 195 (167 SE2d 135), and citations.

Appeal dismissed. All the Justices concur.