(Ga. L. 1965, p. 18, § 6.)
Cross references.- Extension of expiration date, Rules of the Supreme Court of the State of Georgia, Rule 3.
Postmark date, Rules of the Supreme Court of the State of Georgia, Rule 4.
Certification and transmittal of transcript and record, Rules of the Supreme Court of the State of Georgia, Rule 15.
Objection to failure to comply with Appellate Practice Act, Rules of the Supreme Court of the State of Georgia, Rule 20.
Filing notice of appeal and cross appeal, Rules of the Supreme Court of the State of Georgia, Rule 38.
Extension of expiration dates, Rules of the Court of Appeals of the State of Georgia, Rule 3.
Extensions of time for filing, Rules of the Court of Appeals of the State of Georgia, Rule 28.
Notices of appeal and cross appeal, Rules of the Court of Appeals of the State of Georgia, Rule 33.
Law reviews.- For article, "Insuring a Party's Second Chance," see 16 Ga. St. B.J. 177 (1980). For article surveying appellate practice and procedure, see 34 Mercer L. Rev. 3 (1982). For annual survey on administrative law, see 64 Mercer L. Rev. 39 (2012). For comment on Davis v. Davis, 222 Ga. 579, 151 S.E.2d 123 (1966), see 4 Ga. St. B. J. 259 (1967).
JUDICIAL DECISIONSANALYSIS
For proper reasons, appellate courts will entertain an out of time appeal. Mitchell v. State, 157 Ga. App. 181, 276 S.E.2d 864 (1981), but see Gable v. State, 290 Ga. 81, 720 S.E.2d 170 (2011).
Grounds for out of time appeal.- Motion for out of time appeal was properly denied when the appellant alleged only that the appellant's attorney's inadequate performance was the reason why no timely appeal was filed and appellant failed to set forth the questions the appellant would raise in an out of time appeal and that the questions could be resolved by facts in the record.
Because a direct appeal cannot be taken from a guilty plea on the ground of ineffective assistance of counsel unless that issue was developed through a post-plea hearing, it cannot be said that the defendant's right of appeal was frustrated; simply put, the defendant had no right of appeal and the defendant's remedy lay in a habeas corpus proceeding. Rice v. State, 278 Ga. 707, 606 S.E.2d 261 (2004).
Court has broad discretion in granting extensions of time. Brookshire v. J.P. Stevens Co., 133 Ga. App. 97, 210 S.E.2d 46 (1974).
Ga. L. 1967, p. 226, §§ 26, 27, 30 (see O.C.G.A. § 9-11-6(e)) does not apply to this Ga. L. 1965, p. 18, § 6 (see O.C.G.A. § 5-6-39), the filing time not being predicated on service of notice. Akin v. Sanders, 228 Ga. 251, 184 S.E.2d 660 (1971).
Fact that section does not provide for notice and hearing does not render the statute void. Rogers v. McDonald, 226 Ga. 329, 175 S.E.2d 25 (1970).
Notice and hearing are not always necessary for due process.
- Often, with time about to run out, notice and hearing are impossible, and are not necessary for due process. Rogers v. McDonald, 226 Ga. 329, 175 S.E.2d 25 (1970).
When appeal involves criminal defendant who has been ineffectively represented by counsel at trial, this section is inapplicable. Ingram v. State, 134 Ga. App. 935, 216 S.E.2d 608 (1975).
Proper, timely filing of notice of appeal is absolute requirement to confer appellate jurisdiction. Jordan v. Caldwell, 229 Ga. 343, 191 S.E.2d 530 (1972); Associated Distribs., Inc. v. Willard, 242 Ga. 247, 248 S.E.2d 645 (1978); Mitchell v. State, 157 Ga. App. 181, 276 S.E.2d 864 (1981), but see Gable v. State, 290 Ga. 81, 720 S.E.2d 170 (2011).
Burden is on party desiring to take appeal.
- Burden is on party desiring to take appeal to determine when judgment is filed in trial court, and to file the party's notice of appeal within the 30-day period or within the duly authorized extension of the 30-day period. Jordan v. Caldwell, 229 Ga. 343, 191 S.E.2d 530 (1972); Associated Distribs., Inc. v. Willard, 242 Ga. 247, 248 S.E.2d 645 (1978).
Because a litigant's appeal was untimely filed, despite evidence of mistaken delivery beyond the litigant's control the superior court properly held that the court lacked discretion to find otherwise, as the burden to timely file an appeal could not be relieved by providential cause and excusable neglect; thus, the court did not err in dismissing the appeal. Register v. Elliott, 285 Ga. App. 741, 647 S.E.2d 406 (2007).
Dismissal for failure to comply.
- Defendant's failure to timely file transcript or obtain extension of time requires dismissal of appeal. Blackstone v. State, 131 Ga. App. 666, 206 S.E.2d 553 (1974).
Failure to file notice of appeal or obtain extension within 30-day period, subjects appeal to dismissal. Mayo v. State, 148 Ga. App. 213, 251 S.E.2d 80 (1978).
Defendant's motion for new trial filed more than 30 days after the entry of judgment was untimely under O.C.G.A. § 5-5-40(a), void, and did not toll the 30-day time to file a notice of appeal provided by O.C.G.A. § 5-6-38(a). Because the defendant failed to show good cause for the untimely motion, it could not be construed as an extraordinary motion under O.C.G.A. § 5-5-41(b), and even if it were so construed, the defendant did not follow the discretionary appeal procedure of O.C.G.A. § 5-6-35. Davis v. State, 330 Ga. App. 711, 769 S.E.2d 133 (2015).
Failure to get extension.
- Failure to get an extension is not, standing alone, a sufficient basis for dismissal. Boulden v. Fowler, 202 Ga. App. 237, 414 S.E.2d 263 (1991), cert. denied, 202 Ga. App. 905, 414 S.E.2d 263 (1992).
Trial court properly dismissed the debtors' appeal as a transcript was not filed until over two months after the statutory due date, and the debtors did not request an extension of time to file the transcript; any delay in completing the record past the 30 days granted by statute was presumptively unreasonable and inexcusable. Dye v. U.S. Bank Nat'l Ass'n, 273 Ga. App. 652, 616 S.E.2d 476 (2005).
Failure to obtain an extension in the filing of transcripts is not, in and of itself, a sufficient basis for dismissal. Welch v. Welch, 212 Ga. App. 667, 442 S.E.2d 857 (1994).
Homeowner's appeal in a wrongful foreclosure case was properly dismissed due to the homeowner's failure to file the transcript of the summary judgment proceedings for more than eight months after the deadline provided in O.C.G.A. § 5-6-42; the homeowner's proceeding in forma pauperis, O.C.G.A. § 9-15-2, did not excuse the homeowner's failure to timely obtain the transcript. Ashley v. JP Morgan Chase Bank, N.A., 327 Ga. App. 232, 758 S.E.2d 135 (2014).
Effect of failure to timely file transcript and ask for extension.
- Trial court erred in failing to dismiss the state's appeal because the trial court's findings of fact did not support conclusions of law that the state's delay was neither unreasonable nor inexcusable particularly in light of the state's burden to come forward with evidence to rebut the presumption that the delay was inexcusable when the state far exceeded 30 days and the state failed to request an extension. State v. Brienza, 350 Ga. App. 672, 829 S.E.2d 894 (2019).
Requirements of section must be followed to confer jurisdiction upon appellate court. Associated Distribs., Inc. v. Willard, 242 Ga. 247, 248 S.E.2d 645 (1978).
Provisions of section are mandatory and unless complied with, an appeal must be dismissed. Herrington v. Leathers, 115 Ga. App. 282, 154 S.E.2d 621 (1967); Gilmore v. State, 127 Ga. App. 249, 193 S.E.2d 219 (1972).
Ga. L. 1965, p. 18, §§ 6 and 11 (see O.C.G.A. §§ 5-6-39 and5-6-42) are mandatory, and unless complied with, the appeal must be dismissed. Walker v. State Hwy. Dep't, 115 Ga. App. 461, 154 S.E.2d 768 (1967); Martin Theaters of Ga., Inc. v. Lloyd, 118 Ga. App. 835, 165 S.E.2d 909 (1968); Calloway v. State, 119 Ga. App. 194, 166 S.E.2d 613 (1969); Baxter v. Long, 122 Ga. App. 500, 177 S.E.2d 712 (1970).
Counsel filing nonstatutory motions attacking final judgments should invoke protection of this section. Johnson v. Barnes, 237 Ga. 502, 229 S.E.2d 70 (1976).
Party wishing more time than permitted for appealing, should apply for extension under Ga. L. 1965, p. 18, § 6 (see O.C.G.A. § 5-6-39). Where appellant fails to exercise this right and the appellee files a motion to dismiss appeal under Ga. L. 1966, p. 493, § 10 (see O.C.G.A. § 5-6-48), the court has no alternative but to grant motion and dismiss the appeal. Hearn v. DeKalb County, 118 Ga. App. 730, 165 S.E.2d 467 (1968).
This section expressly negatives any motion for extension having to be made, and requires filing only order granting extension. Elliott v. Leathers, 223 Ga. 497, 156 S.E.2d 440 (1967).
Extending time for filing application for discretionary appeal.
- Although extensions of time could be granted for applications for discretionary appeal, pursuant to O.C.G.A. § 5-6-39(a)(5), a trial court did not have the authority to grant an out-of-time discretionary appeal in a criminal case as a remedy for counsel's failure to timely file the application under O.C.G.A. § 5-6-35(d) absent a violation of the appellant's constitutional rights. Gable v. State, 290 Ga. 81, 720 S.E.2d 170 (2011).
Second extension not authorized.
- Trial court did not have authority to grant defendant a second 30-day extension of time to file a notice of appeal. Hughes v. State, 210 Ga. App. 833, 437 S.E.2d 841 (1993).
Paragraph (a)(1) of O.C.G.A. § 5-6-39 gives courts authority to grant an extension of time to file a notice of appeal but this authority is limited by subsection (c) of § 5-6-39 which provides that only one extension shall be granted for filing a notice of appeal and the extension shall not exceed the 30 days allowed for initial filing. Legare v. State, 269 Ga. 468, 499 S.E.2d 640 (1998).
Granting of out of time appeal by superior court is ineffective to confer jurisdiction upon the Supreme Court in civil cases. Woodall v. Woodall, 248 Ga. 172, 281 S.E.2d 619 (1981).
Attempt to amend notice of appeal, which was timely as to summary judgment in one case, to incorporate previously unfiled notice of appeal in a companion case was untimely when summary judgment in companion case had been granted 75 days earlier. Newton v. K.B. Property Mgt. of Ga., Inc., 166 Ga. App. 901, 306 S.E.2d 5 (1983).
Cited in Stanford v. Evans, Reed & Williams, 221 Ga. 331, 145 S.E.2d 504 (1965); Lanier v. Fuller, 113 Ga. App. 234, 147 S.E.2d 875 (1966); Davis v. Davis, 222 Ga. 579, 151 S.E.2d 123 (1966); Sayers v. Rothberg, 222 Ga. 626, 151 S.E.2d 445 (1966); Benecke v. Boyer, 115 Ga. App. 99, 153 S.E.2d 668 (1967); Fleming v. Sanders, 223 Ga. 172, 154 S.E.2d 14 (1967); Threatt v. McElreath, 223 Ga. 153, 154 S.E.2d 20 (1967); Winn v. Powell, 223 Ga. 257, 154 S.E.2d 233 (1967); Joiner v. State, 223 Ga. 367, 155 S.E.2d 8 (1967); Wilcox v. Wilcox, 223 Ga. 396, 156 S.E.2d 84 (1967); Culver v. Sisk, 223 Ga. 519, 156 S.E.2d 352 (1967); Brown v. State, 223 Ga. 540, 156 S.E.2d 454 (1967); Poss v. State, 116 Ga. App. 264, 157 S.E.2d 33 (1967); Strickland v. Staten, 223 Ga. 726, 157 S.E.2d 740 (1967); Buckhead Doctors' Bldg., Inc. v. Oxford Fin. Cos., 116 Ga. App. 503, 157 S.E.2d 767 (1967); Gates v. Southern Ry., 118 Ga. App. 201, 162 S.E.2d 893 (1968); Hogan v. State, 118 Ga. App. 398, 163 S.E.2d 889 (1968); Hardy v. D.G. Mach. & Gage Co., 224 Ga. 818, 165 S.E.2d 127 (1968); Thomas v. State, 118 Ga. App. 748, 165 S.E.2d 477 (1968); Spadea v. Spadea, 225 Ga. 80, 165 S.E.2d 836 (1969); O'Quinn v. State, 121 Ga. App. 231, 173 S.E.2d 409 (1970); Richardson v. Nu-Way Cleaners & Laundry, 121 Ga. App. 425, 174 S.E.2d 202 (1970); Johnson v. State, 122 Ga. App. 785, 178 S.E.2d 743 (1970); Associated Bldrs. Supply v. Georgia-Pacific Corp., 123 Ga. App. 222, 180 S.E.2d 273 (1971); Hardwick v. State, 227 Ga. 467, 181 S.E.2d 376 (1971); Lowe v. Lowe, 123 Ga. App. 525, 181 S.E.2d 715 (1971); Bramlett v. Smith, 227 Ga. 523, 181 S.E.2d 849 (1971); O'Kelley v. McLain, 123 Ga. App. 669, 182 S.E.2d 189 (1971); Carroll v. Holland, 228 Ga. 649, 187 S.E.2d 531 (1972); Bretz v. Fitzgerald, 126 Ga. App. 367, 190 S.E.2d 619 (1972); Model Cleaners & Laundry, Inc. v. Per Corp., 127 Ga. App. 559, 194 S.E.2d 258 (1972); Irby v. Christian, 130 Ga. App. 375, 203 S.E.2d 284 (1973); Jackson v. State, 130 Ga. App. 581, 203 S.E.2d 923 (1974); Neal v. State, 232 Ga. 96, 205 S.E.2d 284 (1974); Taylor v. Whitmire, 234 Ga. 449, 216 S.E.2d 310 (1975); Johnson v. Clements, 135 Ga. App. 495, 218 S.E.2d 109 (1975); State v. Weeks, 136 Ga. App. 637, 222 S.E.2d 117 (1975); Lewis & Sheron Enters., Inc. v. Great A & P Tea Co., 136 Ga. App. 910, 222 S.E.2d 659 (1975); Wilson v. Coite Somers Co., 138 Ga. App. 455, 226 S.E.2d 277 (1976); Dargan, Whitington & Conner, Inc. v. Kitchen, 138 Ga. App. 414, 226 S.E.2d 482 (1976); May v. May, 139 Ga. App. 672, 229 S.E.2d 145 (1976); Smith v. State, 140 Ga. App. 492, 231 S.E.2d 493 (1976); Venable v. Block, 141 Ga. App. 523, 233 S.E.2d 878 (1977); Smith v. Forrester, 145 Ga. App. 281, 243 S.E.2d 575 (1978); Bozard v. J.A. Jones Constr. Co., 146 Ga. App. 877, 247 S.E.2d 605 (1978); Young v. Jones, 147 Ga. App. 65, 248 S.E.2d 49 (1978); Strother v. C. & S. Nat'l Bank, 147 Ga. App. 140, 248 S.E.2d 204 (1978); Hester v. State, 242 Ga. 173, 249 S.E.2d 547 (1978); Cranman Ins. Agency, Inc. v. Wilson Marine Sales & Serv., Inc., 147 Ga. App. 590, 249 S.E.2d 631 (1978); Albert v. Bryan, 150 Ga. App. 649, 258 S.E.2d 300 (1979); Canup v. State, 150 Ga. App. 794, 258 S.E.2d 907 (1979); Sheehan v. Sheehan, 244 Ga. 367, 260 S.E.2d 77 (1979); Music v. State, 244 Ga. 832, 262 S.E.2d 128 (1979); Middleton v. Continental Dev. Corp., 153 Ga. App. 144, 264 S.E.2d 689 (1980); Dampier v. First Bank & Trust Co., 153 Ga. App. 756, 266 S.E.2d 539 (1980); Freeman v. State, 154 Ga. App. 344, 268 S.E.2d 727 (1980); State v. Hart, 246 Ga. 212, 271 S.E.2d 133 (1980); Dunn v. State, 156 Ga. App. 483, 274 S.E.2d 828 (1980); Forrester v. Ladwig, 247 Ga. 426, 276 S.E.2d 613 (1981); Black v. Georgia Power Co., 158 Ga. App. 620, 281 S.E.2d 639 (1981); Hardin v. Macon Mall, 159 Ga. App. 139, 282 S.E.2d 753 (1981); Washington v. State, 158 Ga. App. 829, 282 S.E.2d 776 (1981); Godfrey v. Kirk, 161 Ga. App. 474, 288 S.E.2d 301 (1982); Stavrou v. Pleger, 249 Ga. 475, 291 S.E.2d 514 (1982); Raymond v. State, 162 Ga. App. 493, 292 S.E.2d 196 (1982); Freeman v. Gold & White, Inc., 163 Ga. App. 467, 294 S.E.2d 718 (1982); Morton v. Morton, 163 Ga. App. 830, 296 S.E.2d 362 (1982); Sayre v. State, 165 Ga. App. 225, 299 S.E.2d 749 (1983); Curtis v. State, 168 Ga. App. 235, 308 S.E.2d 599 (1983); In re G.W.H., 168 Ga. App. 845, 310 S.E.2d 573 (1983); Rimes v. State, 182 Ga. App. 721, 356 S.E.2d 897 (1987); Georgia Am. Ins. Co. v. Varnum, 182 Ga. App. 907, 357 S.E.2d 609 (1987); Willis v. State, 186 Ga. App. 197, 366 S.E.2d 778 (1988); Waite v. Harvey, 187 Ga. App. 276, 370 S.E.2d 34 (1988); McKinney v. State, 187 Ga. App. 702, 371 S.E.2d 196 (1988); Aldridge v. State, 188 Ga. App. 729, 374 S.E.2d 223 (1988); Jones v. Perkins, 192 Ga. App. 343, 384 S.E.2d 927 (1989); Baker v. Southern Ry., 260 Ga. 115, 390 S.E.2d 576 (1990); Baker v. State, 195 Ga. App. 424, 394 S.E.2d 801 (1990); Walker v. State, 197 Ga. App. 265, 398 S.E.2d 217 (1990); Hunter v. Roberts, 199 Ga. App. 318, 404 S.E.2d 645 (1991); Pinkney v. Union, 199 Ga. App. 529, 405 S.E.2d 521 (1991); Hall v. Bussey, 200 Ga. App. 311, 408 S.E.2d 430 (1991); Trinity v. Applebee's Neighborhood Grill & Bar, 201 Ga. App. 404, 411 S.E.2d 131 (1991); Snell v. State, 203 Ga. App. 27, 416 S.E.2d 360 (1992); Beavers v. Gilstrap, 210 Ga. App. 46, 435 S.E.2d 267 (1993); Hameed v. Hall, 234 Ga. App. 890, 508 S.E.2d 680 (1998); Durden v. Griffin, 270 Ga. 293, 509 S.E.2d 54 (1998); Bass v. Mercer, 240 Ga. App. 545, 524 S.E.2d 260 (1999); Crown Diamond Co. v. N.Y. Diamond Corp., 242 Ga. App. 674, 530 S.E.2d 800 (2000); In re Estate of Dasher, 259 Ga. App. 201, 575 S.E.2d 921 (2002); Smith v. State, 263 Ga. App. 414, 587 S.E.2d 787 (2003); Pistacchio v. Frasso, 314 Ga. App. 119, 723 S.E.2d 322 (2012); Chernowski v. State, 330 Ga. App. 702, 769 S.E.2d 126 (2015); Gordon v. Dennis, 341 Ga. App. 795, 802 S.E.2d 77 (2017); Wilson v. Wernowsky, Ga. App. , 846 S.E.2d 101 (2020).
Timeliness of Application
Applies to application not to grant of extension.
- Section provides only that application for extension be made before expiration of period, and does not impose penalty of dismissal when application has been made but no extension granted before expiration of 30 days. Elliott v. Leathers, 223 Ga. 497, 156 S.E.2d 440 (1967).
Failure to apply for extension before expiration of period for filing.
- Section provides that application for extension of time must be made before expiration of period for filing; where appellant did not comply with this provision, order granting extension of time for filing was nugatory and void. Almond v. Robertson, 138 Ga. App. 22, 225 S.E.2d 486 (1976).
Trial court has no jurisdiction to grant extension of time for filing notice of appeal where application for extension is not made before expiration of 30-day period prescribed by § 5-6-38. Morris v. State, 115 Ga. App. 715, 155 S.E.2d 735 (1967).
Since a construction company bringing an appeal of a jury verdict in favor of homeowners never sought an extension of time to file the transcript from the post-trial hearing on its motions for new trial and judgment notwithstanding the verdict, nor communicated with the court reporter during the nine-month period after the hearing, the record did not support the trial court's finding that the delay in filing that transcript caused by the construction company was excusable and the trial court's denial of the homeowners' motion to dismiss the appeal was error; the record showed that the construction company's actions delayed a just disposition of the case by delaying the docketing of the appeal and hearing of the case by the appellate court, and, consequently, the homeowners were forced to wait for a final disposition on the construction company's appeal of the verdict against it. Coptic Constr. Co. v. Rolle, 279 Ga. App. 454, 631 S.E.2d 475 (2006).
When an insurer's request for an extension of time to file transcripts in support of the insurer's appeal pursuant to O.C.G.A. § 5-6-39(a)(3) and (d) was not made until months after the initial filing period had expired, the motion was untimely; a trial court order granting the request was accordingly nugatory and void. ACCC Ins. Co. v. Pizza Hut of Am., Inc., 314 Ga. App. 655, 725 S.E.2d 767 (2012).
Nunc pro tunc order cannot correct failure to timely make application. Baxter v. Long, 122 Ga. App. 500, 177 S.E.2d 712 (1970); Gilmore v. State, 127 Ga. App. 249, 193 S.E.2d 219 (1972), overruled on other grounds, Gilman Paper Co. v. James, 235 Ga. 348, 219 S.E.2d 447 (1975).
Orders granting extensions of time for filing of transcript of evidence and proceedings on appeal cannot be granted nunc pro tunc on delayed application. Mingo v. State, 133 Ga. App. 385, 210 S.E.2d 835 (1974).
Immediate signature or order unnecessary.
- If application is timely presented to court, the application does not have to be signed immediately by judge as order may be entered after expiration of the period. Gilmore v. State, 127 Ga. App. 249, 193 S.E.2d 219 (1972), overruled on other grounds, Gilman Paper Co. v. James, 235 Ga. 348, 219 S.E.2d 447 (1975).
Immaterial that order later entered.
- Fact that written order granting extension was not entered until over a month after the court's previously ordered filing date does not invalidate an extension since the order vacated all previous orders and indicated prior, implicit extensions as of the previous filing date. Morris v. Townsend, 118 Ga. App. 572, 164 S.E.2d 869 (1968).
If application is made within time required, it is immaterial that order is later entered. Baxter v. Long, 122 Ga. App. 500, 177 S.E.2d 712 (1970).
No dismissal when appellant does not cause delay and judge denies extension.
- To construe Ga. L. 1965, p. 18, § 6 (see O.C.G.A. § 5-6-39) as requiring dismissal when the appellant did not cause the delay and the trial judge declined to grant a requested extension would shut off the right of appeal, and would thus violate the constitutional mandate of Ga. Const. 1976, Art. VI, Sec. II, Para. V (see Ga. Const. 1983, Art. VI, Sec. IX, Para. II). Such construction would also be contrary to the legislative intent expressed in Ga. L. 1965, p. 18, § 23 and Ga. L. 1968, p. 1072, §§ 2, 3 (see O.C.G.A. §§ 5-6-30 and5-6-48(b)) as to a decision upon merits. Elliott v. Leathers, 223 Ga. 497, 156 S.E.2d 440 (1967).
Delay is attributable to appellant.
- Failure to make timely application as section requires is delay attributable to appellant. Baxter v. Long, 122 Ga. App. 500, 177 S.E.2d 712 (1970).
Evidence supported the trial court's order that the defendant was not entitled to an out-of-time appeal, as the defendant's own conduct, and not any error by the defendant's trial attorney, was the reason for the lack of a timely appeal; because the appeal was untimely, the appellate court lacked jurisdiction to hear the appeal, warranting dismissal. Edwards v. State, 263 Ga. App. 106, 587 S.E.2d 258 (2003).
Ineffectiveness of counsel.
- An out-of-time appeal is not authorized in every criminal case which involves a failure by counsel to comply with applicable procedures; such an appeal is not authorized if the loss of the right to appeal is not attributable to ineffective assistance of counsel but to the fact that the defendant personally slept on the defendant's rights. Porter v. State, 271 Ga. 498, 521 S.E.2d 566 (1999).
Obtaining of extension does not per se excuse appellant from consequences.
- Nothing in statutes or decisions provides that obtaining of extensions per se excuses appellant from consequences of the appellant's own unreasonable delay. Cox Enters., Inc. v. Southland, Inc., 226 Ga. 794, 177 S.E.2d 653 (1970), cert. denied, 401 U.S. 993, 91 S. Ct. 1231, 28 L. Ed. 2d 531 (1971).
Party cannot amend new trial motion after 30 days to move for judgment n.o.v.
- When the party, after suffering an adverse judgment, filed only a motion for new trial within the 30-day period specified in O.C.G.A. § 9-11-50, then after the 30-day period expired party sought to file, in the form of an amendment to the new trial motion, a motion for judgment notwithstanding the verdict, the latter motion must be considered invalid. Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 329 S.E.2d 900, cert. denied, 254 Ga. 349, 331 S.E.2d 879 (1985).
Extension granted after period ran.
- Although the trial court entered an order granting the motion for an extension of time to file the plaintiff's notice of appeal after the extension period ran, the plaintiff filed a timely motion for extension that the trial court had the authority to grant and, in fact, granted, and the plaintiff filed a notice of appeal within the extension period permitted by statute; thus, the appellate court had jurisdiction to decide the plaintiff's appeal. Coleman v. Pretium Mortgage Acquisitions Trust, 351 Ga. App. 229, 830 S.E.2d 616 (2019).
Grants of Extensions
1. Notice of Appeal
Computation of maximum extension allowable.
- Under Ga. L. 1965, p. 18, § 6 (see O.C.G.A. § 5-6-39), neither the trial court nor the appeals court has jurisdiction to grant an extension of more than 30 days for filing of notice of appeal, unless the last day of filing falls on Saturday or Sunday, in which event the time for filing is extended through the following Monday pursuant to former Code 1933, § /b 102-102 (see O.C.G.A. § 1-3-1). Smith v. Smith, 113 Ga. App. 111, 147 S.E.2d 466 (1966); Rockdale County v. Water Rights Comm., Inc., 189 Ga. App. 873, 377 S.E.2d 730 (1989); Dillard v. State, 223 Ga. App. 405, 477 S.E.2d 674 (1996); Grovnor v. Board of Regents, 231 Ga. App. 120, 497 S.E.2d 652 (1998).
Appellee's motion to dismiss the appeal was denied as the filing was timely because the last day of the maximum statutory period for an extension granted by the trial court fell on a Sunday, and the appellant had through the following Monday, September 24, 2018, to file the appellant's notice of appeal. Hodges v. Auction Credit Enters., LLC, 352 Ga. App. 517, 835 S.E.2d 357 (2019).
Authority to grant out of time appeal without specifying order.
- Georgia superior court has the authority under O.C.G.A. § 5-6-39(a)(1) and (c) to grant one 30-day extension of the time for filing the notice of appeal, and nothing in that statute requires the court to specify precisely to which order the extension applied. Terrell County Bd. of Tax Assessors v. Goolsby, 324 Ga. App. 535, 751 S.E.2d 158 (2013).
Indefinite extensions of time not authorized.
- Consent judgment that was timely entered within 30 days of the appellant's motion for j.n.o.v., or new trial, but prior to the denial of the appellant's motion to set aside, would have been effective to grant the appellant a 30-day extension from the date on which it was entered, but it was not effective to extend the filing date for a notice of appeal after the date of a future ruling, viz., the denial of the appellant's motion to set aside. MMT Enters., Inc. v. Cullars, 218 Ga. App. 559, 462 S.E.2d 771 (1995).
Order granting 90 days to perfect appeal.
- Order of trial court granting the defendant 90 days within which to perfect appeal due to the unavailability of a transcript, if intended to be a grant of an extension of time for filing of a notice of appeal, was an ineffective nullity insofar as it purported to grant an extension for a period of time greater than 30 days as such extension in excess of 30 days violates this section. Parker v. State, 156 Ga. App. 299, 274 S.E.2d 694 (1980).
11-month extension of time.
- When a trial court effectively granted the defendant an 11-month extension of time under O.C.G.A. § 5-6-39(c) in which to file a notice of appeal, the appeal was dismissed because the trial court lacked authority under O.C.G.A. § 5-6-38(a) to do so. Cody v. State, 277 Ga. 553, 592 S.E.2d 419 (2004).
Motion for reconsidering order granting summary judgment and dismissing counterclaim.
- For Court of Appeals to acquire jurisdiction over case, notice of appeal must be filed within 30 days of entry of judgment appealed from, unless extension is granted upon proper application to trial court, and motion for reconsideration of order granting summary judgment and dismissing counterclaim does not extend deadline for filing notice of appeal from that order. Peppers House Restaurant, Inc. v. Siefferman, 156 Ga. App. 114, 274 S.E.2d 43 (1980).
Reaffirmance of dismissal of counterclaim.
- When the time for filing the notice of appeal runs from the date of the voluntary dismissal of the appellees' counterclaims, the trial court is powerless to extend the time by entering a subsequent order reaffirming the dismissal of the complaint, even had it intended to do so. Caswell v. Caswell, 157 Ga. App. 710, 278 S.E.2d 452 (1981).
Filing during unauthorized second extension.
- Under O.C.G.A. § 5-6-39, the trial court is authorized to grant only one extension of time for filing of notice of appeal; thus, filing of notice of appeal during unauthorized second extension comes too late to satisfy requirement of O.C.G.A. § 5-6-48. Hamby v. State, 162 Ga. App. 348, 291 S.E.2d 724 (1982).
Trial court was permitted to deny the defendant's second request for an extension of time to file the defendant's notice of appeal because statutory law allowed only one extension of time to be granted for filing a notice of appeal; thus, the defendant's request for an out-of-time appeal after the defendant did not timely file the defendant's notice of appeal was properly denied as it was the defendant's own conduct which caused the defendant to fail to timely file the notice of appeal in spite of the fact the defendant knew both about the right to appeal and the right to obtain appointed counsel. DeLoach v. State, 257 Ga. App. 503, 571 S.E.2d 496 (2002).
Deadline not extended by motion to vacate summary judgment.
- Party's motion to vacate a grant of summary judgment for the opposing party did nothing to extend the deadline for filing a notice of appeal from the order granting the summary judgment. Thompson v. GMAC, 194 Ga. App. 526, 391 S.E.2d 2 (1990).
Untimely request for extension.
- Plaintiff's request for an extension on the basis of inability to pay costs, filed a month after receiving the bill, was untimely, and the plaintiff's belated payment of costs did not eliminate the court's authority to determine the reasonableness and excusability of the payment delay, in ruling on dismissal. Hooper v. Southern Bell Tel. & Tel. Co., 195 Ga. App. 629, 394 S.E.2d 798 (1990).
Denial of extension request proper.
- Trial court did not abuse the court's discretion in denying a condominium unit owner's (CUO) motion for a 90-day extension of time to file a notice of appeal in an action initiated by a neighboring condominium unit owner which was resolved in the neighboring owner's favor, as the CUO failed to refer to anything that would have constituted good cause for the extension, and there was no authority to grant an extension for longer than 30 days. Schroder v. Murphy, 282 Ga. App. 701, 639 S.E.2d 485 (2006), cert. denied, 2007 Ga. LEXIS 220 (Ga. 2007).
2. Transcripts
Burden is on appellant to request extension for filing transcript, and this burden cannot be shifted to court reporter by implying latter's duty to apply for extension. Dunbar v. Green, 232 Ga. 188, 205 S.E.2d 854 (1974).
Even though the initial delay in filing the transcript of the trial may not have been attributable to the minor, that did not excuse the filing delay in the absence of a proper request by the minor for an extension of time as required under O.C.G.A. § 5-6-39. In the Interest of C.F., 255 Ga. App. 93, 564 S.E.2d 524 (2002).
Unless the delay is caused by appellant, failure to timely file a transcript shall not work dismissal. Morris v. Townsend, 118 Ga. App. 572, 164 S.E.2d 869 (1968).
Delay in filing of transcript is not necessarily cause for dismissal.
- Because there was no evidence that an 11-day delay in the filing of a transcript for transmission as part of the appellate record discernibly delayed the docketing of the record in the appellate court, the trial court abused the court's discretion by concluding that the delay was unreasonable, and erred by dismissing an appeal. Fulton County Bd. of Tax Assessors v. Love, 289 Ga. App. 252, 656 S.E.2d 576 (2008).
Delay must have been unreasonable and inexcusable.
- Failure of the appellant to request an extension for the filing of the transcript is not in itself a ground for dismissal of the appeal absent a judicial determination that the resulting delay was both unreasonable and inexcusable. McGuirt v. Lawrence, 193 Ga. App. 611, 389 S.E.2d 2 (1989).
Trial court did not abuse the court's discretion in granting a dismissal of the plaintiff's appeal, pursuant to O.C.G.A. § 5-6-42, because the plaintiff failed to file a transcript for the plaintiff's appeal for more than 17 months after the plaintiff filed the notice of appeal, the plaintiff never sought an extension of time under O.C.G.A. § 5-6-39, and the court held that the plaintiff's action was unreasonable, inexcusable, and caused by the plaintiff's own conduct; there was no requirement that a hearing be held on the motion to dismiss, pursuant to O.C.G.A. § 5-6-48(c), as the plaintiff was only entitled to an opportunity to be heard, which the plaintiff received. Lemmons v. Newton, 269 Ga. App. 880, 605 S.E.2d 626 (2004).
When clerk is unable to timely transmit record.
- Ga. L. 1965, p. 18, § 12 (see O.C.G.A. § 5-6-43) follows the Constitution by stating that the case shall not be dismissed if the clerk is unable to transmit the record within time required by statute or when the judge grants an extension of time, and the clerk shall attach the clerk's certificate attesting to the cause of the delay. George v. American Credit Control, Inc., 222 Ga. 512, 150 S.E.2d 683 (1966).
In a dental malpractice case, the trial court did not abuse the court's discretion in denying the defendant's motion to dismiss the appeal because there was some evidence that the delay in the filing of the transcript on the part of the plaintiff was excusable and not caused by the plaintiff as emails were presented showing that the court reporter indicated that the reporter could not meet the various deadlines. Gordon v. Dennis, 347 Ga. App. 110, 817 S.E.2d 561 (2018).
Determination of whether to grant extension without notice or hearing.
- Court reporter is amenable to trial judge for prompt and efficient performance of the court reporter's duties. This relationship ordinarily provides a judge with sufficient facts upon which to decide whether to grant or deny an application for an extension of time to file a transcript without the necessity of notice and hearing. Rogers v. McDonald, 226 Ga. 329, 175 S.E.2d 25 (1970).
Effect of failure to timely file transcript.
- Trial court did not abuse the court's discretion by dismissing a security corporation's appeal of a civil judgment against the corporation as a result of having failed to have filed a transcript within 30 days as required by O.C.G.A. § 5-6-42. Since no transcript existed, the appellate court was unable to determine whether the security corporation had rebutted the presumption that the filing of the transcript 49 days after the 30-day statutory deadline for filing transcripts was unreasonable and no extension was requested. Pioneer Sec. & Investigations, Inc. v. Hyatt Corp., 295 Ga. App. 261, 671 S.E.2d 266 (2008).
Trial court did not abuse the court's discretion in ruling that an appellant had not satisfied O.C.G.A. §§ 5-6-42 and5-6-48, that the appellant's delay in filing a transcript was unreasonable and inexcusable, and that the delay in the appeal process was the appellant's fault because the case was remanded to the trial court for the purpose of supplementing or reconstructing the transcript, and at the hearing more than a year later, the appellant offered no evidence as to efforts taken by the appellant to obtain the transcript or, if necessary, to file the appropriate motions to extend the time to file the transcript or to have the transcript reconstructed; at no time did the appellant file a motion to reconstruct the record, pursuant to O.C.G.A. § 5-6-41(g), or to extend the time to file the transcript, pursuant to O.C.G.A. § 5-6-39, after the case was remanded to the trial court. Lavalle v. Jarrett, 306 Ga. App. 260, 701 S.E.2d 886 (2010).
Trial court did not abuse the court's discretion in dismissing the parents' appeal under O.C.G.A. § 5-6-48(c) on the ground that the parents delay in the filing of the transcript was unreasonable, inexcusable, and caused by the parents because the parents took no steps whatsoever to have the transcript prepared until almost ten months after the parents filed the parents' notice of appeal, over seven months after the court reporter informed the parents of the necessary deposit, and almost five months after the trial court informed the parents that the parents would be responsible for bearing the full costs of having the transcript prepared; by waiting to pay the deposit and order the transcript, the parents prevented the case from being docketed and heard in the earliest possible appellate term of court. Bush v. Reed, 311 Ga. App. 328, 715 S.E.2d 747 (2011).
Trial court did not abuse the court's discretion in finding that a mother's failure to timely pursue the filing of the transcript from the mother's parental rights termination hearing or seek an extension of time for almost one year was unreasonable and inexcusable and in dismissing the appeal under O.C.G.A. § 5-6-48(a). In the Interest of T.H., 311 Ga. App. 641, 716 S.E.2d 724 (2011).
RESEARCH REFERENCES
ALR.
- Power of trial court indirectly to extend time for appeal, 89 A.L.R. 941; 149 A.L.R. 740.
Lower court's consideration, on the merits, of unseasonable application for new trial, rehearing, or other re-examination, as affecting time in which to apply for appellate review, 148 A.L.R. 795.
Motion or petition for rehearing in court below as affecting time within which appellate proceedings must be taken or instituted, 10 A.L.R.2d 1075.
Exclusion or inclusion of terminal Sunday or holiday in computing time for taking or perfecting appellate review, 61 A.L.R.2d 482.