Sheehan v. Sheehan

244 Ga. 367 (1979)

260 S.E.2d 77

SHEEHAN v. SHEEHAN.

35225.

Supreme Court of Georgia.

Submitted August 30, 1979.

Decided September 26, 1979.

Fleming, Blanchard & Thompson, John Fleming, for appellant.

Percy J. Blount, for appellee.

NICHOLS, Chief Justice.

The order of the trial court dated April 6, 1979, denying the appellant-husband's motion for new trial in these divorce proceedings, was filed with the clerk of superior court on April 12, 1979. That filing constituted entry of judgment. Code Ann. § 81A-158 (b). Thereafter, appellant's counsel obtained an ex parte order dated, and filed with the clerk on, May 23, 1979, which held that the order dated April 6, 1979, "was entered erroneously, and the date of the Order should have been the 6th day of May 1979." The notice of appeal dated May 25, 1979, recites that the appeal is taken from the order "entered on the 6th day of May, 1979, denying defendant's timely Motion for New Trial." The record contains no order "entered" that is, filed with the clerk, on May 6, 1979.

Insofar as the order of May 23, 1979, might have been intended to grant an extension of time for the filing of the notice of appeal, it came too late because no application for an extension of time to file the notice of appeal was "made before expiration of the period for filing as originally *368 prescribed." Code Ann. § 6-804; Associated Distributors, Inc. v. Willard, 242 Ga. 247 (248 SE2d 645) (1978).

The order of May 23, 1979, is entitled "Order Nunc Pro Tunc" although it does not purport to give effect to some judicial action as of some earlier date and although it purports to correct an entry rather than to make a record of an action previously taken but not recorded. Such an order "cannot be used to correct the failure to comply with the mandatory requirements of the Appellate Practice Act." Blackstone v. State, 131 Ga. App. 666 (206 SE2d 553) (1974); Arnold v. DeKalb County, 141 Ga. App. 315, 316 (233 SE2d 273) (1977); Cranman Ins. Agency, Inc. v. Wilson Marine Sales &c., Inc., 147 Ga. App. 590 (249 SE2d 631) (1978).

Appeal dismissed. All the Justices concur.