If the appellant designates any matter to be omitted from the record on appeal as provided in Code Section 5-6-37, the appellee may, within 15 days of serving of the notice of appeal by appellant, file a designation of record designating that all or part of the omitted matters be included in the record on appeal. A copy of the designation shall be served on all other parties in the manner prescribed by Code Section 5-6-32. Where there is a transcript of evidence and proceedings to be included in the record on appeal, the appellant shall cause the transcript to be prepared and filed as provided by Code Section 5-6-41; but, when the appellant has designated that the transcript not be made a part of the record on appeal and its inclusion is by reason of a designation thereof by appellee, the appellee shall cause the transcript to be prepared and filed as referred to in Code Section 5-6-41 at his expense. The party having the responsibility of filing the transcript shall cause it to be filed within 30 days after filing of the notice of appeal or designation by appellee, as the case may be, unless the time is extended as provided in Code Section 5-6-39. In all cases, it shall be the duty of the trial judge to grant such extensions of time as may be necessary to enable the court reporter to complete his transcript of evidence and proceedings.
(Ga. L. 1965, p. 18, § 11.)
Cross references.- Filings in clerk's office, Rules of the Supreme Court of the State of Georgia, Rule 1.
Certification and transmittal of transcript and record, Rules of the Supreme Court of the State of Georgia, Rule 15.
Contents, form, and certification of transcript, Rules of the Supreme Court of the State of Georgia, Rule 18.
Objection to failure to comply with Appellate Practice Act, Rules of the Supreme Court of the State of Georgia, Rule 20.
Preparation of records and transcripts, Rules of the Court of Appeals of the State of Georgia, Rule 42.
Transmission of transcript, Rules of the Court of Appeals of the State of Georgia, Rule 44.
Objections to records or transcripts, Rules of the Court of Appeals of the State of Georgia, Rule 47.
Law reviews.- For article, "Synopses of 1968 Amendments Appellate Procedure Act and Georgia Civil Practice Act," see 4 Ga. St. B.J. 503 (1968). For survey article on appellate practice and procedure, see 59 Mercer L. Rev. 21 (2007). For survey article on appellate practice and procedure, see 60 Mercer L. Rev. 21 (2008). 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
General Consideration
Designation as to precisely which portions of record to be omitted.
- Burden is on appellant in first instance to bring up all record and evidence introduced under it bearing on review of the appellant's enumerations of error, and in particular it is the appellant's duty, if the appellant wishes something omitted, to state it with precision in the appellant's notice of appeal pursuant to this section. Ayers Enters., Ltd. v. Adams, 131 Ga. App. 12, 205 S.E.2d 16 (1974).
Questions regarding trial proceedings related in brief but not in transcript.
- Court of Appeals cannot consider questions regarding proceedings on trial which are related in party's brief but are not incorporated in properly authenticated transcript. Turner v. Watson, 139 Ga. App. 648, 229 S.E.2d 126 (1976).
Party having responsibility of preparing and filing transcript refers to either appellant or appellee, and when the appellant states in notice of appeal that the transcript is to be transmitted as part of the appellate record, the party having responsibility of preparing and filing transcript refers to appellant. State v. Hart, 246 Ga. 212, 271 S.E.2d 133 (1980).
Party having the responsibility of preparing and filing the transcript refers to either the appellant or the appellee. Long v. City of Midway, 165 Ga. App. 602, 302 S.E.2d 372, rev'd on other grounds, 251 Ga. 364, 306 S.E.2d 639 (1983).
Appellant must prepare and file transcript.
- Under Ga. L. 1965, p. 18, § 11 (see O.C.G.A. § 5-6-42), the appellant has the responsibility for causing a transcript to be prepared and filed as provided by Ga. L. 1965, p. 18, § 10 (see O.C.G.A. § 5-6-41) unless the appellant has designated that the transcript not be included in the record. Walker v. State, 153 Ga. App. 89, 264 S.E.2d 565 (1980).
Supreme court could not review the defendant's claim that the trial court set pretrial bond in an excessive and unreasonable amount because the defendant failed to have the record completed pursuant to O.C.G.A. § 5-6-41; testimony at the hearing on the motion for new trial was not a sufficient substitute for a transcript, and without a transcript of the bond hearing or a statutorily authorized substitute, the supreme court had to assume that the trial court's judgment was correct. Glass v. State, 289 Ga. 542, 712 S.E.2d 851 (2011).
Duty of appellant who states in notice of appeal that transcript shall be transmitted.
- When notice of appeal recites that transcript will be filed for inclusion in the record, the transcript must be filed within 30 days after filing of a notice of appeal unless within such time a time extension is applied for and allowed, and failure to timely file a transcript or to timely obtain an extension of time for so doing requires dismissal of the appeal. O'Kelley v. McLain, 123 Ga. App. 669, 182 S.E.2d 189 (1971).
Appellant who states in the notice of appeal that the transcript is to be transmitted as part of the appellate record is statutorily mandated to cause the court reporter to prepare and file an original and one copy of the transcript with the clerk of trial court together with a court reporter's certificate attesting to correctness thereof within 30 days after filing of notice of appeal unless time is extended as provided in Ga. L. 1965, p. 18, § 6 (see O.C.G.A. § 5-6-39). State v. Hart, 246 Ga. 212, 271 S.E.2d 133 (1980).
When the notice of appeal states that a transcript of evidence and proceedings will be filed for inclusion in the record on appeal, the appellant is the party ultimately responsible for filing the transcript. Curtis v. State, 168 Ga. App. 235, 308 S.E.2d 599 (1983).
Duty to request transcription from court reporter.
- Appellant who appeals felony conviction and states in notice of appeal that transcript is to be transmitted as part of appellate record has continuing duty under section to request, at same time that the appellant files a notice of appeal, the court reporter to transcribe the reported testimony. State v. Hart, 246 Ga. 212, 271 S.E.2d 133 (1980).
Appellee's right where appellant designates portion to be omitted.
- Even if the appellant has designated a relevant portion of the record on appeal for omission, the appellee is entitled, under this section, to file the appellee's own designation of record to correct the deficiency and, the appellee also has a remedy for correction of the record under O.C.G.A. § 5-6-41(f), even after it has been transmitted to the Court of Appeals; in the absence of any attempt on the appellee's part to exercise these remedies, the Court of Appeals must assume that the record before it is complete in all relevant respects. Boats for Sail v. Sears, 158 Ga. App. 74, 279 S.E.2d 314 (1981).
Transcript materials destroyed by fire.
- Because the defendant was deprived of an adequate trial transcript when a fire at the court reporter's house destroyed the tapes and materials for the transcript, the defendant was denied the defendant's right to appeal, and the defendant was therefore entitled to a new trial; the state's 14-page recreation of the six-day trial prepared under O.C.G.A. § 5-6-41 was manifestly inadequate. Johnson v. State, 302 Ga. 188, 805 S.E.2d 890 (2017).
Appellant not obligated to prepare record.
- Obligation of the appellant relates to the transcript, and the obligation for the preparation of the record rests with the clerk. After the appellant has filed a notice of appeal, the appellant's duty as to the record is limited to the payment of costs. When the clerk fails to transmit the record, but there is no indication that this failure is occasioned by the failure of a party to pay costs, the trial court has no discretion to dismiss the appeal. Long v. City of Midway, 251 Ga. 364, 306 S.E.2d 639 (1983).
Appellant had no obligation to file transcript until the appellant's motion for new trial was disposed of, and the failure to do so or the failure to pay for and file the transcript as soon as it is ready has no controlling bearing on the question of unreasonable delay in filing the transcript after notice of appeal as required by O.C.G.A. § 5-6-42. Galletta v. Hillcrest Abbey W., Inc., 185 Ga. App. 20, 363 S.E.2d 265 (1987), cert. denied, 185 Ga. App. 910, 363 S.E.2d 265 (1988).
Appellate court will order trial clerk to submit omitted requests.
- Requests to charge are of such importance in an appeal when the trial court's giving of a charge is cited as error that the appellate court will order the clerk of the trial court to submit that portion of the trial record to the appellate court pursuant to O.C.G.A. § 5-6-41(f), and a motion to strike the state's supplementation of the record to include the requests on the ground that it is tardily filed will be denied. Vick v. State, 166 Ga. App. 572, 305 S.E.2d 17 (1983).
State's violation of duty does not excuse defendant's noncompliance.
- It is duty of state to request court reporter to transcribe reported testimony and then file transcript after guilty verdict had been returned in a felony case. However, the state's duty to request court reporter to transcribe reported testimony in felony conviction had no time limit and thus cannot relieve the appellant in felony conviction of duty the court reporter to request court reporter to transcribe reported testimony at same time that the court reporter files a notice of appeal. State v. Hart, 246 Ga. 212, 271 S.E.2d 133 (1980).
Clerk's failure to timely transmit record and delay in raising issue.
- Defendant's due process rights were not violated by the trial court clerk's failure to timely transmit the record to the appellate court for docketing and resolution of the appeal because the defendant failed to raise this issue below, which contributed to the confusing state of the record, and the defendant failed to attempt any clarification or completion of the record via the remedies afforded by law during the seven year delay. Chernowski v. State, 330 Ga. App. 702, 769 S.E.2d 126 (2015).
When defendant ineffectively represented at trial.
- Section inapplicable to appeal involving criminal defendant who was ineffectively represented by counsel at trial. Ingram v. State, 134 Ga. App. 935, 216 S.E.2d 608 (1975).
Transcript of hearing on motion for summary judgment.
- Trial court did not err in ruling that the transcript of the hearing on a manufacturer's motion for summary judgment accurately portrayed what had occurred at the hearing because the certification of the transcript met the requirements of O.C.G.A. § 15-14-5, and a driver had the burden to seek corrective action under O.C.G.A. § 5-6-41(f). Udoinyion v. Michelin N. Am., Inc., 313 Ga. App. 248, 721 S.E.2d 190 (2011).
In an appeal of a criminal conviction, the appellate court chose to sua sponte reinstate the case to address the appellant's enumerations of error on the merits despite the failure to set forth in the notice of appeal the intention to rely upon a previously transmitted transcript because the court had not yet addressed the issue in a published opinion and used the case to place future appellants on notice that similar procedural errors may result in automatic affirmance of a trial court's decision. Holman v. State, 329 Ga. App. 393, 765 S.E.2d 614 (2014).
Cited in Harper v. Green, 113 Ga. App. 557, 149 S.E.2d 163 (1966); Davis v. Davis, 222 Ga. 579, 151 S.E.2d 123 (1966); Oglethorpe Co. v. Carmack, 223 Ga. 128, 153 S.E.2d 541 (1967); 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); Herrington v. Leathers, 115 Ga. App. 282, 154 S.E.2d 621 (1967); Byars v. Metropolitan Life Ins. Co., 115 Ga. App. 368, 154 S.E.2d 719 (1967); Walker v. State Hwy. Dep't, 115 Ga. App. 461, 154 S.E.2d 768 (1967); Joiner v. State, 223 Ga. 367, 155 S.E.2d 8 (1967); Teper v. Weiss, 115 Ga. App. 621, 155 S.E.2d 730 (1967); Wilcox v. Wilcox, 223 Ga. 396, 156 S.E.2d 84 (1967); Puckett v. Edmonds, 115 Ga. App. 776, 156 S.E.2d 151 (1967); Elliott v. Leathers, 223 Ga. 497, 156 S.E.2d 440 (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); Kacoonis v. City of Mountain View, 224 Ga. 151, 160 S.E.2d 364 (1968); Shield Ins. Co. v. Kemp, 117 Ga. App. 538, 160 S.E.2d 915 (1968); D.G. Mach. & Gage Co. v. Hardy, 118 Ga. App. 45, 162 S.E.2d 852 (1968); Hardy v. D.G. Mach. & Gage Co., 224 Ga. 818, 165 S.E.2d 127 (1968); 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); Addis v. First Kingston Corp., 225 Ga. 231, 167 S.E.2d 656 (1969); Hernandez v. Hernandez, 225 Ga. 789, 171 S.E.2d 520 (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); Stevens v. Clayton County, 226 Ga. 528, 175 S.E.2d 831 (1970); Baxter v. Long, 122 Ga. App. 500, 177 S.E.2d 712 (1970); Johnson v. State, 122 Ga. App. 785, 178 S.E.2d 743 (1970); Howard v. Smith, 227 Ga. 427, 181 S.E.2d 47 (1971); Massey v. State, 227 Ga. 257, 181 S.E.2d 71 (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); Whiteway Laundry & Dry Cleaners, Inc. v. Childs, 126 Ga. App. 617, 191 S.E.2d 454 (1972); Smith v. Top Dollar Stores, Inc., 129 Ga. App. 60, 198 S.E.2d 690 (1973); Irby v. Christian, 130 Ga. App. 375, 203 S.E.2d 284 (1973); Price v. Cheek, 130 Ga. App. 506, 203 S.E.2d 751 (1973); Jackson v. State, 130 Ga. App. 581, 203 S.E.2d 923 (1974); Blackstone v. State, 131 Ga. App. 666, 206 S.E.2d 553 (1974); Mingo v. State, 133 Ga. App. 385, 210 S.E.2d 835 (1974); Gilbert v. Reynolds, 233 Ga. 488, 212 S.E.2d 332 (1975); Interstate Fin. Corp. v. Appel, 233 Ga. 649, 212 S.E.2d 821 (1975); Coop Mtg. Invs. Assocs. v. Pendley, 134 Ga. App. 236, 214 S.E.2d 572 (1975); 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); Anderson v. Anderson, 235 Ga. 115, 218 S.E.2d 846 (1975); State v. Weeks, 136 Ga. App. 637, 222 S.E.2d 117 (1975); Canon v. Canon, 236 Ga. 99, 222 S.E.2d 381 (1976); Almond v. Robertson, 138 Ga. App. 22, 225 S.E.2d 486 (1976); Reid v. State, 237 Ga. 106, 227 S.E.2d 24 (1976); DuBois v. DuBois, 240 Ga. 314, 240 S.E.2d 706 (1977); Strother v. C. & S. Nat'l Bank, 147 Ga. App. 140, 248 S.E.2d 204 (1978); McAllister v. City of Jonesboro, 242 Ga. 95, 249 S.E.2d 565 (1978); Reed v. Arrington-Blount Ford, Inc., 148 Ga. App. 595, 252 S.E.2d 13 (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); Brown v. Frachiseur, 247 Ga. 463, 277 S.E.2d 16 (1981); Harris v. Clark, 157 Ga. App. 549, 278 S.E.2d 132 (1981); Edwards v. Davis, 160 Ga. App. 122, 286 S.E.2d 301 (1981); Perry v. Freeman, 163 Ga. App. 186, 293 S.E.2d 381 (1982); Huttig Sash & Door Co. v. Controlled Bldg. Corp., 165 Ga. App. 99, 299 S.E.2d 411 (1983); Ray v. Standard Fire Ins. Co., 168 Ga. App. 116, 308 S.E.2d 221 (1983); Brown v. Commercial Credit Equip. Corp., 172 Ga. App. 568, 323 S.E.2d 822 (1984); Moon v. DeKalb County Personnel Review Panel, 173 Ga. App. 486, 326 S.E.2d 844 (1985); Siler v. Johns, 173 Ga. App. 692, 327 S.E.2d 810 (1985); Whitton v. State, 174 Ga. App. 634, 331 S.E.2d 10 (1985); Neese v. Long, 178 Ga. App. 105, 341 S.E.2d 861 (1986); Baker v. Southern Ry., 192 Ga. App. 444, 385 S.E.2d 125 (1989); Baker v. Southern Ry., 260 Ga. 115, 390 S.E.2d 576 (1990); Department of Human Resources v. Patillo, 196 Ga. App. 778, 397 S.E.2d 47 (1990); Hall v. Bussey, 200 Ga. App. 311, 408 S.E.2d 430 (1991); Sellers v. Nodvin, 262 Ga. 205, 415 S.E.2d 908 (1992); McLelland v. State, 203 Ga. App. 93, 416 S.E.2d 340 (1992); Beavers v. Gilstrap, 210 Ga. App. 46, 435 S.E.2d 267 (1993); Johnson v. Hardwick, 212 Ga. App. 44, 441 S.E.2d 450 (1994); Jackson v. Beech Aircraft Corp., 217 Ga. App. 498, 458 S.E.2d 377 (1995); Plumides v. American Engines & Transmissions, Inc., 227 Ga. App. 885, 490 S.E.2d 552 (1997); 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); Holy Fellowship Church of God in Christ v. First Community Bank of Henry County, 242 Ga. App. 400, 530 S.E.2d 24 (2000); Ball v. Fulton-DeKalb Hosp. Auth., 258 Ga. App. 899, 576 S.E.2d 1 (2002).
Timely Filing of Transcript
Purpose of time requirements.
- Time requirements of O.C.G.A. § 5-6-42 for filing a transcript are not jurisdictional, but are merely a means of avoiding delay so a case can be presented on the earliest possible calendar in the appellate courts. Galletta v. Hillcrest Abbey W., Inc., 185 Ga. App. 20, 363 S.E.2d 265 (1987), cert. denied, 185 Ga. App. 910, 363 S.E.2d 265 (1988).
Appellant bears burden of timely filing transcript or obtaining extension.
- Burden is on appellant to file transcript of evidence within 30 days of filing of notice of appeal, or if transcript cannot be obtained within that time the appellant must obtain an extension of time to file a transcript. Failure to timely file a transcript makes it affirmatively appear that the failure was caused by the appellant. Fahrig v. Garrett, 224 Ga. 817, 165 S.E.2d 126 (1968); Dowling v. State, 120 Ga. App. 810, 172 S.E.2d 190 (1969).
When the minor failed to file the transcript within 30 days of the time the minor filed the notice of appeal as required by O.C.G.A. § 5-6-42, or did not offer assurances of when the transcript might have been filed, the juvenile court did not abuse the court's discretion in dismissing the minor's appeal and finding the delay unreasonable. In the Interest of C.F., 255 Ga. App. 93, 564 S.E.2d 524 (2002).
Appellant's inaction results in dismissal.
- Dismissal was proper when the appellant's inaction caused a delay of nine months between the notice of appeal and delivery of the transcript. In re D.M.C., 232 Ga. App. 466, 501 S.E.2d 305 (1998).
Statutory law placed burden not only of paying for transcript, but making sure it was filed, on the party taking the appeal, and since the patient had that burden and shirked that responsibility, resulting in a greater than three-year delay that prejudiced the surgical business and doctor, the trial court was entitled to involuntarily dismiss the patient's appeal. Atlanta Orthopedic Surgeons v. Adams, 254 Ga. App. 532, 562 S.E.2d 818 (2002).
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 the company's 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 the company. Coptic Constr. Co. v. Rolle, 279 Ga. App. 454, 631 S.E.2d 475 (2006).
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).
Effect of failure to timely file transcript.
- Failure to file transcript in accordance with O.C.G.A. § 5-6-42 is not jurisdictional, and is not ground for dismissal unless accompanied by finding of unreasonableness and lack of excuse, as required by O.C.G.A. § 5-6-48(c). Young v. Jones, 147 Ga. App. 65, 248 S.E.2d 49 (1978); Llano v. DeKalb County, 174 Ga. App. 693, 331 S.E.2d 36 (1985); Galletta v. Hillcrest Abbey W., Inc., 185 Ga. App. 20, 363 S.E.2d 265 (1987), cert. denied, 185 Ga. App. 910, 363 S.E.2d 265 (1988); Burns v. Howard, 239 Ga. App. 315, 520 S.E.2d 491 (1999).
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); Barmore v. Himebaugh, 205 Ga. App. 381, 422 S.E.2d 255 (1992); Dalton v. Thanh Tam Vo, 224 Ga. App. 382, 480 S.E.2d 377 (1997).
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).
Trial court did not err in dismissing the litigant's appeal when the litigant had not filed the transcript 110 days after the notice of appeal was filed; the litigant's claim of poverty was contradicted by the litigant's trip to India during the time the appeal was pending. Roy v. Shetty, 274 Ga. App. 8, 616 S.E.2d 208 (2005).
Appeal was properly dismissed for failure to timely file a transcript under O.C.G.A. § 5-6-42 since the 150 day delay in filing the transcript was unreasonable under O.C.G.A. § 5-6-48, in that it resulted in a delay of the consideration of the appeal for another term and affected the appellee's ability to administer the estate in question; the delay was inexcusable since the record indicated that the attorney had the transcript when the attorney filed the notice of appeal. Adams v. Hebert, 279 Ga. App. 158, 630 S.E.2d 652 (2006).
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 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).
Party not responsible when not cause of delay.
- Trial court has discretion to dismiss an appeal for failure to timely file a transcript only if: (1) the delay in filing was unreasonable; and (2) the failure to timely file was inexcusable in that the delay was caused by some act of the party responsible for filing the transcript. 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).
Inexcusable and unreasonable delay.
- Trial court erred in denying the appellee's motion to dismiss the appellant's appeal because in the order denying the appellee's motion to dismiss the appeal, the trial court did not consider whether the appellee suffered prejudice as a result of the 15-month delay as a delay is unreasonable if the delay affects an appeal either by directly prejudicing the position of a party by allowing an intermediate change of conditions or otherwise resulting in inequity or by causing the appeal to become stale. Newton v. Freeman, 353 Ga. App. 704, 839 S.E.2d 203 (2020).
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).
Dismissal proper where transcript not timely filed nor extension applied for. When no application was made to the trial judge for an extension of time for filing of transcript of evidence and no extension was granted, appellee's motion to dismiss an appeal because the transcript was not filed within 30 days after the notice of appeal was filed must be granted. Culver v. Sisk, 223 Ga. 519, 156 S.E.2d 352 (1967); Cole v. Cole, 228 Ga. 9, 183 S.E.2d 743 (1971); Thomas v. Satterfield, 169 Ga. App. 432, 313 S.E.2d 134 (1984).
Trial court did not abuse the court's discretion in finding that the delay in timely filing a transcript was caused by plaintiffs and was inexcusable, given the plaintiffs undisputed failure to seek another extension of the deadline and the trial court's authorization to conclude that the plaintiffs had failed even to order the additional portions of transcript until the deadline had passed. Van Diviere v. Delta Airlines, 204 Ga. App. 573, 420 S.E.2d 27, cert. denied, 204 Ga. App. 922, 420 S.E.2d 27 (1992).
Dismissal was supported by a finding that the delay was unreasonable and inexcusable, given a four-month delay in filing the transcript and the defendant's apparent lack of diligence in discovering that the transcript would be delayed. Langston v. State, 206 Ga. App. 874, 426 S.E.2d 609 (1992).
Delay of 112 days between the filing of the notice of appeal and completion of the transcript warranted dismissal of the appeal. Smith v. Simpson, 231 Ga. App. 109, 497 S.E.2d 663 (1998).
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 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, but 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).
Trial court did not abuse the court's discretion, pursuant to O.C.G.A. § 5-6-48(c), in granting the appellee's motion to dismiss with regard to the transcript on appeal because the appellants' delay in filing the transcript, pursuant to O.C.G.A. §§ 5-6-41(c) and5-6-42, was unreasonable, inexcusable, and caused by the appellants. Pistacchio v. Frasso, 314 Ga. App. 119, 723 S.E.2d 322 (2012).
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).
Appellants were unable to overcome the presumption that the delay in filing the trial transcript was unreasonable as the appellants did not properly order the transcript until after the 30-day period set forth in O.C.G.A. § 5-6-42 elapsed and the appellants failed to request an extension of time to file the transcript until after the appellees filed the appellees' motion to dismiss. Postell v. Alfa Ins. Corp., 332 Ga. App. 22, 772 S.E.2d 793 (2015).
In a juvenile delinquency case, a parent's appellate argument that the juvenile court erred by dismissing the parent's appeal for failure to pay costs because the clerk of court never submitted a cost bill was meritless because the juvenile court had in fact dismissed the parent's appeal because of the parent's 10-month delay in causing the requested transcripts to be filed as required under O.C.G.A. §§ 5-6-42 and5-6-48. In the Interest of C. W., 342 Ga. App. 484, 803 S.E.2d 618 (2017).
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).
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).
Filing of transcript in lower court before filing of notice of appeal complies with section. Logan v. Logan, 223 Ga. 574, 156 S.E.2d 913 (1967).
Appellant responsible for unreasonable delay.
- Fact that an unreasonable delay in the preparation of the transcript is not the fault of the appellant does not excuse a filing delay, in the absence of a proper request by the appellant for an extension of time. This being so, the trial court is authorized to dismiss the appeal. In re G.W.H., 168 Ga. App. 845, 310 S.E.2d 573 (1983).
Remand for requisite finding.
- Order dismissing appeal, which simply recited that the transcript had not been timely filed but did not include the requisite finding that the resulting delay was both unreasonable and inexcusable, was reversed and remanded for the requisite finding. Speir v. Nicholson, 193 Ga. App. 444, 388 S.E.2d 42 (1989).
Although unreasonable delay occurred in ordering a transcript, remand was necessary for the trial court to make affirmative rulings on the record whether the delay was excusable or who was the cause of the delay. Jackson v. Beech Aircraft Corp., 213 Ga. App. 172, 444 S.E.2d 359 (1994).
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).
Following a jury verdict in a dentist's favor in a dental malpractice case, upon the dentist's motion to dismiss the appeal for failure to file the transcript, the trial court erred in denying the motion without making the findings regarding the reasons for the delay as required by O.C.G.A. § 5-6-48(c). Gordon v. Dennis, 341 Ga. App. 795, 802 S.E.2d 77 (2017).
Cost of Transcript
Cost of transcript falls on party desiring its transmittal.
- Cost of obtaining from court reporter a transcript of evidence falls on party desiring that the transcript be transmitted to appellate court. Stone Mt. Mem. Ass'n v. Stone Mt. Scenic R.R., Inc., 232 Ga. 92, 205 S.E.2d 293 (1974).
Expense where supplementation necessary.
- Expense of entire record falls on appellant who includes only parts of the record when trial court approves additional designations by appellee. Jones v. Spindel, 239 Ga. 68, 235 S.E.2d 486 (1977).
When appellant designates portion of transcript, and then appellee designates entire transcript of evidence to be material to appeal, and trial judge approves such additional designation, expense of procuring and filing entire transcript of evidence must be borne by the appellant. Brand v. Montega Corp., 233 Ga. 35, 209 S.E.2d 583 (1974).
Costs of preparing transcript are not recoverable.
- While costs of having transcript prepared by court reporter are an expense of appeal, they are not costs of appeal which are recoverable from appellee when the appellant is successful in obtaining a reversal in the appellate court. Stone Mt. Mem. Ass'n v. Stone Mt. Scenic R.R., Inc., 232 Ga. 92, 205 S.E.2d 293 (1974).
When the defendant in the court below and on appeal only briefly asserted that those items included in the record were unnecessary to the appeal, without explaining or arguing the issue in any detail, the trial court had ample grounds to find that the defendant failed in the burden to show that costs should be apportioned. Jacques v. Murray, 290 Ga. App. 334, 659 S.E.2d 643 (2008).
Delay in paying costs.
- Delay of slightly more than 30 days in paying the bill of costs because of the appellant's medical condition was properly found to be neither unreasonable nor inexcusable. Poythress v. Savannah Airport Comm'n, 229 Ga. App. 303, 494 S.E.2d 76 (1997).