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Lawskills.com Georgia Caselaw
IN RE DOE.
76987.
DEEN, Presiding Judge.
Motion to dismiss. Clarke Superior Court. Before Judge Gaines.
Roy Dale Kirk has not filed an enumeration of errors or a brief in this case, although they were due on May 18, 1988. On May 19, 1988, this court denied his pro se request for an extension of time in which to file these documents. On June 7, 1988, appellees filed a motion to dismiss the appeal on the grounds that the notice of appeal was not timely filed. Held:
Kirk filed an action in the court below to legitimate his minor daughter who had been placed by her biological mother with Jane and John Doe for the purpose of adoption. The mother opposed the legitimation proceeding and, after hearing evidence and argument of counsel, the petition was denied. On November 19, 1987, some thirty-three days after the entry of that judgment, Kirk filed a notice of appeal. Appellee's counsel filed an affidavit and a motion to dismiss. A hearing was held on December 22, 1987, and the court held that the notice of appeal was not timely filed and dismissed the appeal. A second notice of appeal along with a motion to proceed in forma pauperis , an affidavit of poverty, and a motion for appointment of counsel was filed on January 25, 1988. The trial court entered an order on January 27, 1988, denying Kirk's request for appointment of counsel. On February 25, 1988, Kirk filed a notice of appeal from the order of January 27 claiming that it was from an order "denying his notice of appeal." It is from the order of January 27 that he seeks review in this court.
OCGA 5-6-38 (a) requires a notice of appeal to be filed within thirty days after entry of an appealable decision or judgment. If a notice of appeal is filed more than thirty days after the rendition of such an order or judgment, the Court of Appeals is without jurisdiction to entertain an appeal. Hull v. Campbell, 130 Ga. App. 637 (204 SE2d 312 (1974). The record shows that Kirk's notices of appeal filed on November 19, 1987, and January 25, 1988, were not timely filed. The trial court was therefore correct in declining to appoint counsel in its order of January 27, 1988, as there was no viable appeal pending. Moreover, the order did not deny his notice of appeal, as contended in his notice of appeal of February 25, 1988. We find no error in the trial court's ruling.
Thomas H. Rogers, Jr., for appellee.
Roy Kirk, pro se.
DECIDED SEPTEMBER 6, 1988.
Thursday May 21 12:30 EDT


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