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Lawskills.com Georgia Caselaw
ROGERS v. INTERNATIONAL MINERAL & CHEMICAL CORPORATION et al.
44329.
WHITMAN, Judge.
Appellate procedure. Tift Superior Court. Before Judge Gray.
"In all cases certified to the appellate courts, the costs for preparing the transcript of the record shall be paid by the appellant to the clerk before the same shall be transmitted, unless the appellant makes affidavit that he is unable to pay such costs or give security therefor." Code Ann. 24-2729 (Ga. L. 1889, p. 104; 1963, p. 368).
However, the decisions above referred to have been effectively overruled, on the point under discussion, by Howard v. Mitcham, 224 Ga. 288 (161 SE2d 291). In the Howard case, after the case had been filed with the Clerk of the Supreme Court and submitted on briefs without oral argument, it was then made to appear by the filing of a certificate of the clerk of the superior court from which the appeal had been taken, that the costs due to have been paid before transmittal of the record had not been so paid and further had not since been paid as of the date of the clerk's certificate. The Supreme Court held: "Under the facts appearing in the certificate of the clerk, it is apparent the appeal was inadvertently transmitted to this court by the clerk of the trial court at a time when he was not authorized by law to transmit it and under the provisions of the Code section above quoted [Code Ann. 24-2729], the appeal is improperly here and must be dismissed."
The Howard case is controlling. The motion to dismiss the appeal in the present case is accordingly granted.
Perry, Walters, Langstaff, Lippitt & Campbell, Robert B. Langstaff, R. R. Buckley, for appellees.
Dan S. Beeland, Garland T. Byrd, for appellant.
SUBMITTED MARCH 5, 1969 -- DECIDED JULY 8, 1969.
Friday May 22 17:57 EDT


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