Jackson v. MAYOR &C. OF CITY OF CARROLLTON

116 Ga. App. 323 (1967)

157 S.E.2d 500

JACKSON v. MAYOR &c. OF CITY OF CARROLLTON; and vice versa.

43044, 43045.

Court of Appeals of Georgia.

Submitted September 6, 1967.

Decided September 15, 1967.

Reuben M. Word, for appellant.

William J. Wiggins, for appellee.

HALL, Judge.

The plaintiff appeals from a judgment entered upon a directed verdict for the defendant. The defendant has made a motion to dismiss the appeal on the ground that the record was not transmitted to this court within 30 days after the appeal as required by Ga. L. 1965, pp. 18, 28, as amended, Ga. L. 1966, pp. 493, 497.

The notice of appeal was filed in the trial court on April 20, 1967. An order of court was entered extending the time for filing the transcript for 35 days. The transcript was filed on May 25, 1967. On May 30, 1967, it was the duty of the clerk to transmit the record together with transcript to this court, if costs had been paid. Ga. L. 1966, pp. 493, 497. The clerk billed the appellant for costs on April 28, 1967. The costs were paid on July 14, 1967, and the case was immediately transmitted. The 43-day delay in transmittal was due to the fault of the appellant. It resulted in the case being returnable to the September term rather than the April term of this court. This is distinguished from Hornsby v. Rodriguez, 116 Ga. App. 234, where a delay in the trial court did not result in a stale appeal to this court. Therefore, under the mandate of the Supreme Court this court has no alternative but to grant the appellee's motion to dismiss the appeal in Case No. 43044. George v. American Credit Control, 222 Ga. 512 (150 SE2d 683); Davis v. Davis, 222 Ga. 579 (151 SE2d 123); Vezzani v. Vezzani, 222 Ga. 853 (153 SE2d 161). *324 Since the appellee will not "stand to receive benefit or advantage by a decision on his cross appeal," it is likewise dismissed. Ga. L. 1965, pp. 18, 29, as amended.

Appeal dismissed. Felton, C. J., and Eberhardt, J., concur.