O.C.G.A. § 5-6-43 (2019)

Annotations

Cross references. - Payment by appellant of costs of transcript preparation prior to transmittal of transcript to appellate court, § 15-6-80. 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. Duty of trial court clerks

as to records and transcripts, Rules of the Court of Appeals of the State of Georgia, Rule 41. Preparation of records and transcripts, Rules of the Court of Appeals of the State of Georgia, Rule 42. Objections to records or transcripts, Rules of the Court of Appeals of the State of Georgia, Rule 47. Editor’s notes. - Ga. L. 2011, p. 24, § 4/HB 41, not codified by the General Assembly, provides that the amendment by that Act shall apply retroactively to all cases for which fees have not been assessed. Law reviews. - For article, ‘‘Setting the Record Straight: A Proposal to Save Time and Trees,’’ see 14 Ga. St. B.J. 14 (2008).

JUDICIAL DECISIONS One purpose of the requirement of filing transcript under Ga. L. 1965, p. 18, § 10 and Ga. L. 1968, p. 1072, § 6 (see O.C.G.A. §§ 5-6-41 5-6-43) is to afford local counsel in county when the case was tried convenient access to exact duplicate copy of record so as to enable counsel to easily ascertain proper references to be included in brief and written argument. Law v. Smith, 226 Ga. 298, 174 S.E.2d 893 (1970). Constitutionality. - This section follows the Constitution by stating that cause shall not be dismissed if clerk is unable to transmit record within time required by statute, or when judge grants extension of time, and the judge shall attach the judge’s certificate attesting to cause of delay. George v. American Credit Control, Inc., 222 Ga. 512, 150 S.E.2d 683 (1966). Appellant responsible for contents of record. - It is appellant’s burden to designate what shall be included in the record on appeal; failing which the Court of Appeals is not authorized to go outside the record and accept assertions of fact in briefs which are not supported by the record, nor accept as fact what is asserted by way of argument in a transcript. Doe v. State, 205 Ga. App. 322, 422 S.E.2d 558 (1992). Late filing of transcript is no longer ground for dismissal of appeals by ap-

pellate courts. Smith v. Smith, 128 Ga. App. 29, 195 S.E.2d 269 (1973). Appellant’s failure to state whether transcript will be filed. - Failure of the appellant to state whether or not the transcript will be filed for inclusion in record on appeal is not cause for dismissal of appeal when action of the appellant does not result in delay of transmission of appeal. Kennedy v. Savannah News-Press, Inc., 122 Ga. App. 175, 176 S.E.2d 540 (1970). Inexcusable delay in failing to file transcript. - In an attorney lien case, the trial court did not abuse the court’s discretion by dismissing the former client’s appeal for a delay in transmitting the record appendix because the delay of 55 days was inexcusable and caused by the former client, who had elected to take responsibility for transmitting the record by stating in the notice of appeal that the client would file a record appendix and never amended the client’s notice of appeal to provide that the clerk would be responsible for transmission of the record. McAlister v. Abam-Samson, 318 Ga. App. 1, 733 S.E.2d 58 (2012). Delay in transmittal which has no prejudicial effect. - When the plaintiff ’s delay in transmitting record is not prejudicial to the defendant in causing delay in hearing or decision of appeal, and

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the defendant does not show any change in the defendant’s position or inequity resulting from delay in transmittal of record, motion to dismiss is denied. Brawner v. Martin & Jones Produce Co., 116 Ga. App. 324, 157 S.E.2d 514 (1967). Delay caused by appellant’s designation that nonexistent transcript be included. - Delay in transmission of appeal to Court of Appeals caused by the appellant’s designation of transcript to be included when such transcript was nonexistent requires dismissal of appeal. Kennedy v. Savannah News-Press, Inc., 122 Ga. App. 175, 176 S.E.2d 540 (1970). 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); Holy Fellowship Church of God in Christ v. First Community Bank, 242 Ga. App. 400, 530 S.E.2d 24 (2000). Policy to require appellants to pay before copying material. - Court found nothing unduly burdensome, unreasonable, or unfair regarding the policy of the DeKalb County State Court to request payment of costs prior to photocopying the record because the court had lost ‘‘a couple of thousand dollars’’ when the appellants failed to pay costs after the record was photocopied. CRA Transp., Inc. v. Rolls Royce Motors, Inc., 204 Ga. App. 825, 420 S.E.2d 757, cert. denied, 204 Ga. App. 921, 420 S.E.2d 757 (1992). Consideration of clerk’s certificate. - Although a court clerk’s certificate under O.C.G.A. § 5-6-43 that was attached to a record on appeal indicated that the delay in the transmission of the record was not due to any fault by the insurer that had appealed as the certificate was dated months after the trial court dismissed an earlier appeal under O.C.G.A. § 5-6-48(c), it was clearly not considered

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by the trial court in the court’s dismissal decision and, accordingly, it was not considered by the appellate court on appeal from the dismissal. ACCC Ins. Co. v. Pizza Hut of Am., Inc., 314 Ga. App. 655, 725 S.E.2d 767 (2012). Clerk of court liable for attorney’s fees to litigant for failure to prepare and transmit record. - Clerk of court was liable to a litigant for attorney’s fees under O.C.G.A. § 9-15-14 based on the clerk’s failure to prepare and transmit the record in the litigant’s case to the appellate court as required by O.C.G.A. § 5-6-43 until six months after the record should have been prepared, and then only when the litigant filed a petition for mandamus, to which the clerk interposed meritless defenses. Robinson v. Glass, 302 Ga. App. 742, 691 S.E.2d 620 (2010). Cited in Davis v. Davis, 222 Ga. 579, 151 S.E.2d 123 (1966); Vezzani v. Vezzani, 222 Ga. 853, 153 S.E.2d 161 (1967); DeFee v. I.S. Berlin Press, Inc., 115 Ga. App. 206, 154 S.E.2d 452 (1967); Hornsby v. Rodriguez, 116 Ga. App. 234, 156 S.E.2d 830 (1967); Employers’ Fire Ins. Co. v. Pennsylvania Millers Mut. Ins. Co., 116 Ga. App. 433, 157 S.E.2d 807 (1967); Kilgo v. Cochran, 225 Ga. 477, 169 S.E.2d 818 (1969); Jacobs v. Shiver, 226 Ga. 284, 174 S.E.2d 415 (1970); Satcher v. James H. Drew Shows, Inc., 122 Ga. App. 548, 177 S.E.2d 846 (1970); Zeeman Mfg. Co. v. L.R. Sams Co., 123 Ga. App. 99, 179 S.E.2d 552 (1970); Crump v. State, 124 Ga. App. 502, 184 S.E.2d 367 (1971); Abel v. J.H. Harvey Co., 126 Ga. App. 115, 190 S.E.2d 87 (1972); Nevels v. City of Sale City, 128 Ga. App. 65, 195 S.E.2d 658 (1973); Key Life Ins. Co. v. Mitchell, 129 Ga. App. 192, 198 S.E.2d 919 (1973); Stone Mt. Mem. Ass’n v. Stone Mt. Scenic R.R., Inc., 232 Ga. 92, 205 S.E.2d 293 (1974); Summit Ins. Co. v. Mulherin, 233 Ga. 606, 212 S.E.2d 788 (1975); Herring v. Herring, 134 Ga. App. 766, 216 S.E.2d 642 (1975); Barnett v. Mobley, 236 Ga. 565, 224 S.E.2d 406 (1976); Young v. Climatrol S.E. Distrib. Corp., 237 Ga. 53, 226 S.E.2d 737 (1976); Hogan v. City-County Hosp., 138 Ga. App. 906, 227 S.E.2d 796 (1976); Pickett v. Paine, 139 Ga. App. 508, 229 S.E.2d 90 (1976); Little v. Thompson Co., 140 Ga. App. 238, 230 S.E.2d 316 (1976); McKissic

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v. Kresge, 141 Ga. App. 604, 234 S.E.2d 96 (1977); Karlsberg v. Hoover, 142 Ga. App. 590, 236 S.E.2d 520 (1977); Malloy v. Aetna Cas. & Sur. Co., 143 Ga. App. 212, 237 S.E.2d 692 (1977); Craig Mtg. Co. v. Lanier Hosp., 144 Ga. App. 147, 240 S.E.2d 324 (1977); Ray v. Williams, 144 Ga. App. 155, 240 S.E.2d 577 (1977); Whitehead v. Great Cent. Ins. Co., 144 Ga. App. 422, 241 S.E.2d 302 (1977); ITT Indus. Credit Co. v. Burnham, 152 Ga. App. 641, 263 S.E.2d 482 (1979); City of Atlanta v. Barton, 153 Ga. App. 426, 265

S.E.2d 345 (1980); Neese v. Long, 178 Ga. App. 105, 341 S.E.2d 861 (1986); Battallia v. City of Columbus, 199 Ga. App. 897, 406 S.E.2d 290 (1991); Rewis v. Shaw, 208 Ga. App. 876, 432 S.E.2d 617 (1993); Crown Diamond Co. v. N.Y. Diamond Corp., 242 Ga. App. 674, 530 S.E.2d 800 (2000); Wilbanks v. State, 251 Ga. App. 248, 554 S.E.2d 248 (2001); Carter v. State, 267 Ga. App. 520, 600 S.E.2d 637 (2004); Purvis v. State, 288 Ga. 865, 708 S.E.2d 283 (2011); Pistacchio v. Frasso, 314 Ga. App. 119, 723 S.E.2d 322 (2012).