State Highway Department v. Hicks

Ebbrhardt, Judge. Appellee, relying on Davis v. Davis, 222 Ga. 579 (151 SE2d 123), moved to dismiss the appeal because the transcript of evidence was not filed within 30 days after the filing of the notice of appeal, no extension of time having been obtained from the trial court. We noted the 1967 amendment to the Appellate Practice Act (Ga. L. 1967, p. 220 et seq.), which would change the rule announced in that case and proceeded to deny the motion and decide the case on its merits. However, on motion for rehearing appellee urged the invalidity of the amendment because it carried no enacting clause. Concluding that this raised a constitutional issue, we vacated our judgment and transferred the case to the Supreme Court. State Hwy. Dept. v. Hicks, 115 Ga. App. 703 (155 SE2d 689). After our transfer of the case, the Supreme Court, in another case, decided that lack of an enacting clause did invalidate the amendment, without reference to the constitutional issue (Joiner v. State, 223 Ga. 367 (155 SE2d 8)), and thereafter transferred the case back to this court. State Hwy. Dept. v. Hicks, 223 Ga. 434 (156 SE2d 74). Held: The notice of appeal was filed October 14, 1966. The transcript was not filed, nor was any order extending the time for filing sought or obtained until November 16, 1966, more than 30 days after the filing of the notice of appeal. Nothing appears as to why an order extending the time could not have been applied for and obtained within the statutory 30 days. The delay, therefore, must be charged to appellant and although it was not great we can perceive no reason for not applying the rule. Since the statute provides that it must be done, or an order extending time obtained, within 30 days and neither was done, the motion to dismiss must be sustained. Davis v. Davis, 222 Ga. 579, supra; Strauss v. State, 116 Ga. App. 154 (156 SE2d 543). Nothing appears in this record that would invoke the application of the rule announced in Elliott v. Leathers, 223 Ga. 497 (156 SE2d 440). Appeal dismissed. Felton, C. J., and Hall, J., concur. George P. Dillard, Herbert 0. Edwards, Robert E. Mozley, for appellant. Zachary & Hunter, W. E. Zachary, Sr., John C. Hunter, E. H. Stanford, for appellees.