Banks v. Green

Sognier, Chief Judge. Angelo Bernard Banks, an inmate of the Georgia Diagnostic & Classification Center at Jackson, brought suit pro se against three members of the Fulton County Sheriff’s Department seeking damages for the alleged disappearance of certain personal property belonging to Banks when he was transferred from the Fulton County Jail to the prison at Jackson to begin serving his sentence. The trial court entered an order granting summary judgment to the defendants and denying several motions made by Banks, and Banks appeals. Notice of appeal in this case was filed on December 23, 1991, thirty-three (33) days after the entry on November 20, 1991 of the order from which appellant appeals, and three days after the time prescribed by law. OCGA § 5-6-38 (a). Our courts have held without exception that the timely filing of a notice of appeal constitutes a jurisdictional requirement, and absent a timely filed notice of appeal this court lacks jurisdiction to entertain an appeal. Hull v. Campbell, 130 Ga. App. 637 (204 SE2d 312) (1974). Although appellant’s notice of appeal is dated December 17, 1991, this court has held that the burden of filing the notice of appeal in timely fashion is upon the party taking the appeal, Moncrief v. Tara Apts., Ltd., 162 Ga. App. 695 (293 SE2d 352) (1982), and “[this] burden is not satisfied by relying on the postal delivery but may be satisfied only by depositing the notice of appeal with the clerk within the appropriate time frame. [Cit.]” Id. This court has made no exceptions to the rule where the untimeliness is allegedly attributable to the trial court, Cranman Ins. Agency v. Wilson Marine Sales &c., 147 Ga. App. 590, 591 (249 SE2d 631) (1978), or to the illness or even death of counsel, Wren v. Josey, 97 Ga. App. 593, 594 (103 SE2d 745) (1958), and we see no reason to do so here. Accordingly, while we are cognizant of appellant’s pro se status, we are constrained to dismiss this appeal for lack of jurisdiction. Appeal dismissed. McMurray, P. J., and Cooper, J., concur. Michael Mears & Associates, Viuiane M. Haight, for appellees.