Brand v. MONTEGA CORPORATION

233 Ga. 35 (1974) 209 S.E.2d 583

BRAND
v.
MONTEGA CORPORATION.

28785.

Supreme Court of Georgia.

Argued April 10, 1974. Decided September 17, 1974. Rehearing Denied October 17, 1974.

Shoob, McLain & Jessee, C. James Jessee, Jr., for appellant.

Neely, Freeman & Hawkins, Williams G. Tabb, III, Joe C. Freeman, Long, Weinberg, Ansley & Wheeler, Palmer H. Ansley, Wall, Parker & Campbell, Alford Wall, for appellee.

Alston, Miller & Gaines, Martin H. Peabody, John R. Martin, amicus curiae.

GUNTER, Justice.

This appeal is ancillary to the appeal in No. 28784, and it raises only one question: Does a pauper's affidavit in a civil case relieve appellant from payment of the cost of having the trial transcript prepared by the official court reporter?

The trial judge allowed the appeal without the prepayment of court costs, but he held that the appellant, even though a pauper's affidavit was filed, would have to secure and pay for the transcript of the evidence prepared by the court reporter.

The appellant designated a portion of the transcript of the evidence to be included in the record on appeal. The appellee then designated the remainder of the transcript for inclusion in the record, and the trial judge, after a hearing, denied appellant's motion to strike the additional designation and granted appellee's motion for the additional designation.

In Stone Mtn. Memorial Assn. v. Stone Mtn. Scenic R., 232 Ga. 92 (205 SE2d 293) (1974), this court held, by a divided vote, that the cost of having a transcript prepared by the court reporter is an "expense of appeal" and that such expense is not recoverable "costs of appeal."

Also, Code Ann. § 6-806 provides that where there is a transcript of evidence to be included in the record on appeal, the appellant shall cause the transcript to be prepared and filed as provided by § 6-805. There is no statutory provision for the preparation and filing of a partial transcript of the evidence. Therefore, when the appellant designates a portion of the transcript, and then the appellee designates the entire transcript of the evidence to be material to the appeal, and the trial judge approves such additional designation, as in this case, the expense of procuring and filing the entire transcript of the evidence must be borne by the appellant.

Judgment affirmed. All the Justices concur, except Hall, J., who concurs in the judgment only.