Knighton v. FNB Financial Co.

Quillian, Judge. Appeal in this case was taken from the order of the trial judge dismissing the appellant’s appeal of a prior order and judgment. The appellee moved in the trial court to dismiss the appeal and pursuant to such motion a hearing was held at which the trial judge entered an order which recited: "Evidence and argument by counsel for both parties having been heard, and it appearing to this court that said defendant neither caused the transcript to be filed within the time required by law nor obtained an extension of time for so doing as required by law, and it further appearing from the evidence, both oral and documentary, that said defendant did not even order the transcript until more than 30 days after filing of the notice of appeal,” the appeal is dismissed. The hearing was held on November 11,1974, and the order of dismissal entered by the trial judge on November 20, 1974. Held: In a recent opinion the Supreme Court has set forth the following rule: "[Tjhe Appellate Practice Act requires that appeals from final judgments be determined on their merits if at all possible, and the absence in the appellate [808] record of existing transcripts or documents, available in the trial court, is not ground to refuse consideration of enumerated errors on their merits.” Interstate Financial Corp. v. Appel, 233 Ga. 649, 651 (212 SE2d 821). Submitted March 10, 1975 Decided May 13, 1975. Spence & Knighton, Judson R. Knighton, for appellant. Lazarus, Stokes & Kaplan, John H. Watson, Sumner & Mitchell, Douglas W. Mitchell, III, for appellee. It should be noted in this case that there is a certificate by the court reporter to the effect that from November 11 through the time of the filing of the appeal in this case that no transcript of the proceedings with regard to the hearing on that date, November 11, has been requested by either party. Hence, there is no transcript of the hearing on file in the lower court. That being true, the order of the trial judge reciting facts showing that the appellant was at fault in failing to procure the timely filing of a transcript must be presumed to be supported by sufficient evidence and the judgment entered thereon must be affirmed. Darsey v. Darsey, 232 Ga. 381 (207 SE2d 22). Judgment affirmed. Panned, P. J., and Clark, J., concur.