Wilcox v. Wilcox

223 Ga. 396 (1967)

156 S.E.2d 84

WILCOX v. WILCOX.

24055.

Supreme Court of Georgia.

Argued May 8, 1967.

Decided June 8, 1967.

T. Ross Sharpe, Gordon Knox, Jr., Thomas M. Odom, G. Hughel Harrison, for appellant.

C. W. Heath, Sumner & Boatright, J. Laddie Boatright, for appellee.

FRANKUM, Justice.

The notice of appeal in this case was filed in the office of the Clerk of the Superior Court of Jeff Davis County October 23, 1965. The transcript of the evidence was filed June 4, 1966.

Appellant contends that "the Presiding Judge issued an order under [Section 11-A of the Appellate Practice Act of 1965, Ga. L. 1965, pp. 18, 27], which was in force and effect at said time [said section was repealed by Ga. L. 1966, pp. 493, 496] and ordered the record delayed being transmitted to the Supreme Court" and therefore her appeal should not be dismissed for failure to file the transcript of the evidence in due time. The trial judge issued an order on March 2, 1967, in which he directed the clerk of the trial court to transmit the record in this case to this court, and it is apparent that the aforesaid contention of the appellant is based upon the part of the said order which reads as follows: "The court under date of October 29, 1965, having notified counsel that pursuant to Section 11-A of the [Appellate] Practice Act of 1965 that the court had ordered the above case to be set down for hearing prior to the transmission of the record to the [appellate] courts and in said order having provided that hearings *397 under the provisions of Section 11-A would be set upon filing of the records in the trial court..." (Emphasis supplied.) There is nothing in the aforesaid order or the record indicating any justification for the failure of the appellant to file the transcript of the evidence within 30 days after the notice of appeal was filed. The record does not even indicate that an order was issued extending the time in which the transcript might be filed or that appellant at any time applied for issuance of such an order. Therefore, since the transcript was not filed within 30 days after the notice of appeal was filed, the appeal must be dismissed. Code Ann. §§ 6-804, 6-806; Ga. L. 1965, pp. 18, 21, 26; Joiner v. State, 223 Ga. 367; Threatt v. McElreath, 223 Ga. 153 (154 SE2d 20); Fleming v. Sanders, 223 Ga. 172 (154 SE2d 14); Davis v. Davis, 222 Ga. 579 (151 SE2d 123).

Appeal dismissed. All the Justices concur.