Synthetic Industries v. Camp

Deen, Presiding Judge,

dissenting.

I must respectfully dissent, as I do not believe that the court below lost jurisdiction of the case when the record was not transmitted within the statutorily required period. The statutory provision that the board is required to transmit all documents and papers on file is directory. Aetna Cas. &c. Co. v. Nuckolls, 69 Ga. App. 649 (26 SE2d 473) (1943). Where neither appellant nor his attorney is in any way connected with the delay in transmittal, so as to prevent the board from transmitting the record, the court should not make appellant or his counsel suffer on account of the delay. Id. at 652.

OCGA § 34-9-105 (b) requires affirmance of the board’s decision by operation of law if the court does not hear the case within 60 days from the date the appeal is filed. Here, almost six months elapsed before the record was transmitted to the superior court and, in a letter to the court which is a part of the appellate record, the board attributed the delay to more litigation in the case which caused the file to be “sent back and forth to the Dalton office.”

The case should therefore be remanded to determine if the delay in transmitting the record was attributable to the appellant or his counsel before considering the appeal based upon the record. See Baker v. Southern R. Co., 260 Ga. 115 (390 SE2d 576) (1990).

Decided July 5, 1990 Rehearing denied July 31, 1990 — Cert, applied for. Saveli & Williams, Benjamin H. Terry, Jennifer H. Chapin, for appellants. Robert A. Wharton, Jr., for appellee.