In all cases certified to the appellate courts, the costs for preparing the transcript of the record shall be paid by the appellant to the clerk before the same is transmitted unless the judge presiding over the case being appealed approves an affidavit submitted to the judge by the appellant certifying that the appellant is unable to pay such costs or upon the appellant providing adequate security for such costs.
(Ga. L. 1889, p. 104, § 2; Civil Code 1895, § 5400; Civil Code 1910, § 5996; Code 1933, § 24-2729; Ga. L. 1963, p. 368, § 1; Ga. L. 2012, p. 173, § 1-18/HB 665.)
Cross references.- Preparation of transcripts for purposes of bringing appeal, § 5-6-41 et seq.
JUDICIAL DECISIONS
All costs shall be paid in court below or appellant shall make affidavit of inability to pay such costs before the clerk transmits record to the appellate court. Pickett v. Paine, 139 Ga. App. 508, 229 S.E.2d 90 (1976).
Appeal based on unauthorized transfer of transcript improper.
- If an appeal is inadvertently transmitted to an appellate court by the clerk of the trial court at a time when the clerk was not authorized to transmit the appeal since the appellant had neither paid the costs of preparing the transcript nor made a pauper's affidavit, the appeal is improper and must be dismissed. Rogers v. International Mineral & Chem. Corp., 120 Ga. App. 54, 169 S.E.2d 659 (1969).
No dismissal when record sent without opportunity to pay costs.
- Dismissal of appeal because clerk sent record to supreme court before appellant had opportunity to pay costs is improper. J.D. Jewell, Inc. v. Hancock, 226 Ga. 480, 175 S.E.2d 847 (1970).
Rights of parties not affected by breach of duty to collect costs.
- If the clerk breaches the clerk's duty to collect the costs before sending the record to the supreme court, this would be a matter between the clerk and the county, and would not affect the rights of parties litigant. J.D. Jewell, Inc. v. Hancock, 226 Ga. 480, 175 S.E.2d 847 (1970).
Clerk's waiver of benefits.
- In a county where the clerk is on a fee basis, the clerk's waiver of the benefits of this section, passed for the purpose of insuring the clerk's collection of the costs prior to sending the record to the supreme court, would not affect the rights of litigants. J.D. Jewell, Inc. v. Hancock, 226 Ga. 480, 175 S.E.2d 847 (1970).
If pauper's affidavit is held not to be good and appellant fails to make supersedeas bond in three days, appeal is dismissed. George v. American Credit Control, Inc., 222 Ga. 512, 150 S.E.2d 683 (1966).
Appellate court not to police procedures of trial courts.
- This section does not require appellate court to police procedures of trial courts if issue is not directly before the court on appeal, as it would be, for example, in a contempt action against the clerk. City of Atlanta v. Akins, 116 Ga. App. 230, 156 S.E.2d 665 (1967).
Challenge to sentence dismissed as moot because sentence expired before transcript sent. Jayko v. State, 335 Ga. App. 684, 782 S.E.2d 788 (2016).
Cited in Aetna Cas. & Sur. Co. v. Sampley, 108 Ga. App. 617, 134 S.E.2d 71 (1963); Bryant v. Motors Ins. Corp., 109 Ga. App. 47, 135 S.E.2d 905 (1964); Leach v. Housing Auth., 111 Ga. App. 104, 140 S.E.2d 563 (1965); Vezzani v. Vezzani, 222 Ga. 853, 153 S.E.2d 161 (1967); Hornsby v. Rodriguez, 116 Ga. App. 234, 156 S.E.2d 830 (1967); American Cas. Co. v. Smith, 116 Ga. App. 332, 157 S.E.2d 312 (1967); Howard v. Mitcham, 224 Ga. 288, 161 S.E.2d 291 (1968); Consolidated Pecan Sales Co. v. Savannah Bank & Trust Co., 122 Ga. App. 536, 177 S.E.2d 808 (1970); Smith v. Mayor of Lake City, 125 Ga. App. 772, 189 S.E.2d 104 (1972); Azar v. Baird, 232 Ga. 81, 205 S.E.2d 273 (1974); Elliott v. Walton, 136 Ga. App. 211, 220 S.E.2d 696 (1975); Wadlington v. Wadlington, 235 Ga. 582, 221 S.E.2d 1 (1975); Little v. Thompson Co., 140 Ga. App. 238, 230 S.E.2d 316 (1976); Adderholt v. Adderholt, 240 Ga. 626, 242 S.E.2d 11 (1978); Corbin v. First Nat'l Bank, 151 Ga. App. 33, 258 S.E.2d 697 (1979); Marshall v. Fulton Nat'l Bank, 152 Ga. App. 121, 262 S.E.2d 448 (1979); Pistacchio v. Frasso, 314 Ga. App. 119, 723 S.E.2d 322 (2012).
OPINIONS OF THE ATTORNEY GENERALFailure of superior court clerk to collect costs on appeal does not affect outcome of appeal. 1973 Op. Att'y Gen. No. U73-43.
Payment of other costs not to be condition precedent.- Clerk may demand payment of costs for preparing the transcript of a pauper's affidavit as a condition precedent to preparation and transmittal of the transcript and record to the appellate courts; the clerk may not, however, require payment of other costs as a condition precedent. 1972 Op. Att'y Gen. No. U72-16.
Code section does not always require payment by county.
- O.C.G.A. § 17-8-5 makes it the duty of the court, or county officials, to require that testimony be taken down and that a written record be filed with the clerk, but does not require that all transcripts be paid for by the county. 1981 Op. Att'y Gen. No. U81-22.
In nonindigent cases, appellant pays if requesting transcript.- If the appellant requests that transcript be filed as part of the record on appeal in a nonindigent criminal case, appellant is responsible for payment of court reporter fees for preparation of the transcript. 1981 Op. Att'y Gen. No. U81-22.
County becomes requesting party if defendant does not appeal.
- If no appeal is filed by the defendant, then the county would be the requesting party responsible for the preparation of the transcript and for the payment of court reporter fees under O.C.G.A. § 17-8-5. 1981 Op. Att'y Gen. No. U81-22.
RESEARCH REFERENCES
Am. Jur. 2d.
- 15A Am. Jur. 2d, Clerks of Court, § 18.
C.J.S.- 21 C.J.S., Courts, § 330 et seq.