Fuller v. Williams , 143 Ga. App. 772 ( 1977 )

143 Ga. App. 772 (1977) 240 S.E.2d 141

FULLER
v.
WILLIAMS et al.

54466.

Court of Appeals of Georgia.

Argued September 20, 1977. Decided October 13, 1977. Rehearing Denied November 7, 1977.

Benjamin Zeesman, for appellant.

Hurt & Pfeiffer, James W. Hurt, for appellees.

BELL, Chief Judge.

The trial court dismissed the appeal in this case for delay caused by the failure of appellant to pay costs in the trial court or to file a pauper's affidavit. The trial court found that the delay was both unreasonable and inexcusable. It was shown that defendant filed an original notice of appeal on December 20, 1976. On January 25, 1977 appellant's counsel was mailed a statement of costs. On January 27, 1977 counsel requested and was furnished with an itemized statement. On February 4, 1977 the motion to dismiss the appeal was filed. The costs were finally paid on February 7, 1977. Appellant was made aware of the amount of the costs by her counsel on January 28, 1977. At the hearing held on the motion she testified that she did not in her own right have sufficient funds to pay the costs and that later a third party finally advanced her the money to pay the costs. No pauper's affidavit was ever filed. The dismissal of an appeal for delay in payment of costs is not mandatory but rests within the discretion of the trial court. Young v. Climatrol &c. Corp., 237 Ga. 53 (226 SE2d 737). Considering the reason for the delay offered by the appellant the lack of pauper's affidavit and the fact that the costs were not paid until 49 days after the filing of the notice of appeal and 13 days after the amount of costs was made known, it is not shown that the trial court abused its discretion in dismissing the appeal. Pickett v. Paine, 139 Ga. App. 508 (229 SE2d 90).

Judgment affirmed. Shulman and Smith, JJ., concur.