Irby v. Christian

Evans, Judge,

concurring specially. I concur in the judgment of reversal, but I do not agree with or concur in the language in Headnote 2(b). There it is held that: "An appeal shall not be dismissed where the record discloses that the appellant did not cause the failure of the court reporter to file the transcript of evidence within the time provided by law or order of the court.” The appellate court has the right and duty to dismiss a stale appeal, even though the matter was not dealt with in the lower court as suggested by the amendment of 1968 (Ga. L. 1968, p. 1072; Code Ann. § 6-809 (b)). That Act sought to place the duty and responsibility on the trial (the lower) court for deciding whether the appeal should be dismissed or not. The amendment of 1968 was completely ineffective to place the sole responsibility for dismissal of appeal on the lower court, rather than in the appellate courts, and our duty to dismiss remains the same as it was before the enactment of this law. Cox Enterprises v. Southland, 226 Ga. 794, at 797 (177 SE2d 653); Fahrig v. Garrett, 224 Ga. 817-818 (2) (165 SE2d 126).

An appellant is not allowed to rest upon the mere showing that he did not cause the delay in filing the transcript, or by securing a certificate from the court reporter that his work-load prevented the timely filing of same. The appellant must be diligent — must inquire of the court reporter as to progress in completion of the transcript, and when it appears that it will not be ready for timely filing, he must secure an order from the lower court extending the time for filing; and he must continue to secure such extensions until the transcript is finally filed. Further, each new order of extension must be obtained before the time set by the previous extension has expired. Fahrig v. Garrett, 224 Ga. 817, 818, supra; Fett v. Daniel, 226 Ga. 729 (177 SE2d 240); Cox Enterprises v. Southland, 226 Ga. 794, 797, supra; Cole v. Cole, 228 Ga. 9 (183 SE2d 743).

But in the case sub judice, a pure and simple question of law is presented, and the majority correctly determined that the Department of Public Safety lacks legislative authority to determine whether there exists a reasonable possibility of judgment being rendered against a party as a result of an automobile accident; and properly reverses this case, in which judgment I concur.