Stanford v. Evans, Reed & Williams , 221 Ga. 331 ( 1965 )

221 Ga. 331 (1965) 145 S.E.2d 504

STANFORD
v.
EVANS, REED & WILLIAMS.

23160.

Supreme Court of Georgia.

Submitted October 11, 1965. Decided October 19, 1965. Judgment Adhered To On Rehearing November 4, 1965.

Limerick L. Odom, for appellant.

W. Colbert Hawkins, for appellee.

QUILLIAN, Justice.

In the instant case the appellant filed his notice of appeal on August 14, 1965, 31 days after the trial judge's order overruling his motion for new trial, which order was rendered on July 14, 1965. The Appellate Practice Act of 1965 (Ga. L. 1965, pp. 18, 21; Code Ann. § 6-803) provides: "A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of ..., but when a motion for new trial, or a motion in arrest of judgment, or a motion for judgment not withstanding the verdict has been filed, the notice shall be filed within 30 days after the order granting, overruling, or otherwise finally disposing of the motion." While there is a proviso that the trial judge may extend the time for filing the notice of appeal (Ga. L. 1965, pp. 18, 21; Code Ann. § 6-804), the entire record was sent to this court and no order extending the time is contained therein. The failure to file a notice of appeal within the time required is a ground for dismissal under Ga. L. 1965, pp. 18, 29, as amended, Ga. L. 1965, pp. 240, 241 (Code Ann. § 6-809).

Appeal dismissed. All the Justices concur, except Mobley, J., not participating for providential cause.

ON REHEARING.

For the reasons therein stated we adhere to our original judgment. However, for another insurmountable reason this case must be dismissed. Upon further examination of the record, we find that the enumeration of errors was filed 17 days after the case was docketed in this court. Under the view we take of Sections 13 and 14 of the Appellate Practice Act of 1965 (Ga. L. 1965, pp. 18, 29, as amended Ga. L. 1965, pp. 240, 243; Code Ann. § 6-809 and 6-810) they require the enumeration of errors to be filed within the time prescribed by this court for the appellant to file his brief. Rule 20 of the Rules of the Supreme Court of the State of Georgia specifies that the appellant's brief must be filed with the clerk within 15 days after the docketing of the case in this court. Hence, the enumeration of errors in this case was not timely and, for this further reason, the appeal is dismissed.

Judgment adhered to. All the Justices concur, except Mobley, J., not participating for providential cause.