GA Code § 5-6-43 (2021)
2021 Georgia Code|Title 5 - Appeal and Error|Chapter 6 - Certiorari and Appeals to Appellate Courts Generally|Article 2 - Appellate Practice|§ 5-6-43. Preparation and Transmittal of Record on Appeal by Court Clerk; Retention of Copy by Clerk; Furnishing at No Cost to Attorney General in Capital Cases; Notification Where Defendant Confined to Jail

  Within five days after the date of filing of the transcript of evidence and proceedings by the appellant or appellee, as the case may be, it shall be the duty of the clerk of the trial court to prepare a complete copy of the entire record of the case, omitting only those things designated for omission by the appellant and which were not designated for inclusion by the appellee, together with a copy of the notice of appeal and copy of any notice of cross appeal, with date of filing thereon, and transmit the same, together with the transcript of evidence and proceedings, to the appellate court, together with his certificate as to the correctness of the record. Where no transcript of evidence and proceedings is to be sent up, the clerk shall prepare and transmit the record within 20 days after the date of filing of the notice of appeal. If for any reason the clerk is unable to transmit the record and transcript within the time required in this subsection or when an extension of time was obtained under Code Section 5-6-39, he shall state in his certificate the cause of the delay and the appeal shall not be dismissed. The clerk need not recopy the transcript of evidence and proceedings to be sent up on appeal but shall send up the reporter's original and retain the copy, as referred to in Code Section 5-6-41; and it shall not be necessary that the transcript be renumbered as a part of the record on appeal. The clerk shall retain an exact duplicate copy of all records and the transcript sent up, with the same pagination, in his office as a permanent record.   Where the accused in a criminal case was convicted of a capital felony, the clerk shall likewise furnish, at no cost, the Attorney General with an exact copy of the record on appeal.   Where a defendant in a criminal case is confined in jail pending appeal, it shall be the duty of the clerk to state that fact in his certificate; and it shall be the duty of the appellate court to expedite disposition of the case.   Where a transcript of evidence and proceedings is already on file at the time the notice of appeal is filed, as where the transcript was previously filed in connection with a motion for new trial or for judgment notwithstanding the verdict, the clerk shall cause the record and transcript (where specified for inclusion) to be transmitted as provided in subsection (a) of this Code section within 20 days after the filing of the notice of appeal.    (Ga. L. 1965, p. 18, § 12; Ga. L. 1966, p. 493, § 5; Ga. L. 1968, p. 1072, § 6; Ga. L. 1981, p. 1396, § 15; Ga. L. 1992, p. 6, § 5; Ga. L. 2011, p. 24, § 1/HB 41.)    The 2011 amendment,  effective March 16, 2011, in subsection (b), inserted ", at no cost," and deleted ", for which the clerk shall receive a fee as required by paragraph (6) of subsection (h) of Code Section 15-6-77, to be paid out of funds appropriated to the Department of Law" following "record on appeal". See editor's note for applicability.   Cross references.   - Payment by appellant of costs of transcript preparation prior to transmittal of transcript to appellate court, § 15-6-80.   Certification and transmittal of transcript and record, Rules of the Supreme Court of the State of Georgia, Rule 15.   Objection to failure to comply with Appellate Practice Act, Rules of the Supreme Court of the State of Georgia, Rule 20.   Duty of trial court clerks as to records and transcripts, Rules of the Court of Appeals of the State of Georgia, Rule 41.   Preparation of records and transcripts, Rules of the Court of Appeals of the State of Georgia, Rule 42.   Objections to records or transcripts, Rules of the Court of Appeals of the State of Georgia, Rule 47.   Editor's notes.   - Ga. L. 2011, p. 24, § 4/HB 41, not codified by the General Assembly, provides that the amendment by that Act shall apply retroactively to all cases for which fees have not been assessed.   Law reviews.   - For article, "Setting the Record Straight: A Proposal to Save Time and Trees," see 14 Ga. St. B.J. 14 (2008).   JUDICIAL DECISIONS    One purpose of the requirement of filing transcript under Ga. L. 1965, p. 18, § 10 and Ga. L. 1968, p. 1072, § 6 (see O.C.G.A. §§ 5-6-415-6-43) is to afford local counsel in county when the case was tried convenient access to exact duplicate copy of record so as to enable counsel to easily ascertain proper references to be included in brief and written argument. Law v. Smith, 226 Ga. 298, 174 S.E.2d 893 (1970).   Constitutionality.    - This section follows the Constitution by stating that cause shall not be dismissed if clerk is unable to transmit record within time required by statute, or when judge grants extension of time, and the judge shall attach the judge's certificate attesting to cause of delay. George v. American Credit Control, Inc., 222 Ga. 512, 150 S.E.2d 683 (1966).   Appellant responsible for contents of record.    - It is appellant's burden to designate what shall be included in the record on appeal; failing which the Court of Appeals is not authorized to go outside the record and accept assertions of fact in briefs which are not supported by the record, nor accept as fact what is asserted by way of argument in a transcript. Doe v. State, 205 Ga. App. 322, 422 S.E.2d 558 (1992).    Late filing of transcript is no longer ground for dismissal of appeals by appellate courts. Smith v. Smith, 128 Ga. App. 29, 195 S.E.2d 269 (1973).   Clerk's delay in filing transcript and failure to raise issue.    - Defendant's due process rights were not violated by the trial court clerk's failure to timely transmit the record to the appellate court for docketing and resolution of the appeal because the defendant failed to raise this issue below, which contributed to the confusing state of the record, and the defendant failed to attempt any clarification or completion of the record via the remedies afforded by law during the seven year delay. Chernowski v. State, 330 Ga. App. 702, 769 S.E.2d 126 (2015).   Appellant's failure to state whether transcript will be filed.    - Failure of the appellant to state whether or not the transcript will be filed for inclusion in record on appeal is not cause for dismissal of appeal when action of the appellant does not result in delay of transmission of appeal. Kennedy v. Savannah News-Press, Inc., 122 Ga. App. 175, 176 S.E.2d 540 (1970).   Inexcusable delay in failing to file transcript.    - In an attorney lien case, the trial court did not abuse the court's discretion by dismissing the former client's appeal for a delay in transmitting the record appendix because the delay of 55 days was inexcusable and caused by the former client, who had elected to take responsibility for transmitting the record by stating in the notice of appeal that the client would file a record appendix and never amended the client's notice of appeal to provide that the clerk would be responsible for transmission of the record. McAlister v. Abam-Samson, 318 Ga. App. 1, 733 S.E.2d 58 (2012).   Delay in transmittal which has no prejudicial effect.    - When the plaintiff's delay in transmitting record is not prejudicial to the defendant in causing delay in hearing or decision of appeal, and the defendant does not show any change in the defendant's position or inequity resulting from delay in transmittal of record, motion to dismiss is denied. Brawner v. Martin & Jones Produce Co., 116 Ga. App. 324, 157 S.E.2d 514 (1967).   Delay caused by appellant's designation that nonexistent transcript be included.    - Delay in transmission of appeal to Court of Appeals caused by the appellant's designation of transcript to be included when such transcript was nonexistent requires dismissal of appeal. Kennedy v. Savannah News-Press, Inc., 122 Ga. App. 175, 176 S.E.2d 540 (1970).   Exclusions from record not permitted.    - While the statutory scheme under O.C.G.A. § 5-6-43(a) contemplates requests by the appellee to include portions of the record that the appellant has designated for exclusion, the statute does not authorize the appellee to request exclusion of items the appellant desires to include. McHugh Fuller Law Group, PLLC v. PruittHealth-Toccoa, LLC, 297 Ga. 94, 772 S.E.2d 660 (2015).    Trial court erred in ordering the trial court clerk to omit from the appellate record all submissions filed after entry of the permanent injunction because the statutory scheme presumes that a complete record will be transmitted to the appellate court unless the appellant specifically requests otherwise. McHugh Fuller Law Group, PLLC v. PruittHealth-Toccoa, LLC, 297 Ga. 94, 772 S.E.2d 660 (2015).   Appellant not obligated to prepare record.    - Obligation of the appellant relates to the transcript, and the obligation for the preparation of the record rests with the clerk. After the appellant has filed a notice of appeal, the appellant's duty as to the record is limited to the payment of costs. When the clerk fails to transmit the record, but there is no indication that this failure is occasioned by the failure of a party to pay costs, the trial court has no discretion to dismiss the appeal. Long v. City of Midway, 251 Ga. 364, 306 S.E.2d 639 (1983); Holy Fellowship Church of God in Christ v. First Community Bank of Henry County, 242 Ga. App. 400, 530 S.E.2d 24 (2000).   Policy to require appellants to pay before copying material.    - Court found nothing unduly burdensome, unreasonable, or unfair regarding the policy of the DeKalb County State Court to request payment of costs prior to photocopying the record because the court had lost "a couple of thousand dollars" when the appellants failed to pay costs after the record was photocopied. CRA Transp., Inc. v. Rolls Royce Motors, Inc., 204 Ga. App. 825, 420 S.E.2d 757, cert. denied, 204 Ga. App. 921, 420 S.E.2d 757 (1992).   Consideration of clerk's certificate.    - Although a court clerk's certificate under O.C.G.A. § 5-6-43 that was attached to a record on appeal indicated that the delay in the transmission of the record was not due to any fault by the insurer that had appealed as the certificate was dated months after the trial court dismissed an earlier appeal under O.C.G.A. § 5-6-48(c), it was clearly not considered by the trial court in the court's dismissal decision and, accordingly, it was not considered by the appellate court on appeal from the dismissal. ACCC Ins. Co. v. Pizza Hut of Am., Inc., 314 Ga. App. 655, 725 S.E.2d 767 (2012).   Clerk of court liable for attorney's fees to litigant for failure to prepare and transmit record.    - Clerk of court was liable to a litigant for attorney's fees under O.C.G.A. § 9-15-14 based on the clerk's failure to prepare and transmit the record in the litigant's case to the appellate court as required by O.C.G.A. § 5-6-43 until six months after the record should have been prepared, and then only when the litigant filed a petition for mandamus, to which the clerk interposed meritless defenses. Robinson v. Glass, 302 Ga. App. 742, 691 S.E.2d 620 (2010).    Cited in Davis v. Davis, 222 Ga. 579, 151 S.E.2d 123 (1966); Vezzani v. Vezzani, 222 Ga. 853, 153 S.E.2d 161 (1967); DeFee v. I.S. Berlin Press, Inc., 115 Ga. App. 206, 154 S.E.2d 452 (1967); Hornsby v. Rodriguez, 116 Ga. App. 234, 156 S.E.2d 830 (1967); Employers' Fire Ins. Co. v. Pennsylvania Millers Mut. Ins. Co., 116 Ga. App. 433, 157 S.E.2d 807 (1967); Kilgo v. Cochran, 225 Ga. 477, 169 S.E.2d 818 (1969); Jacobs v. Shiver, 226 Ga. 284, 174 S.E.2d 415 (1970); Satcher v. James H. Drew Shows, Inc., 122 Ga. App. 548, 177 S.E.2d 846 (1970); Zeeman Mfg. Co. v. L.R. Sams Co., 123 Ga. App. 99, 179 S.E.2d 552 (1970); Crump v. State, 124 Ga. App. 502, 184 S.E.2d 367 (1971); Abel v. J.H. Harvey Co., 126 Ga. App. 115, 190 S.E.2d 87 (1972); Nevels v. City of Sale City, 128 Ga. App. 65, 195 S.E.2d 658 (1973); Key Life Ins. Co. v. Mitchell, 129 Ga. App. 192, 198 S.E.2d 919 (1973); Stone Mt. Mem. Ass'n v. Stone Mt. Scenic R.R., Inc., 232 Ga. 92, 205 S.E.2d 293 (1974); Summit Ins. Co. v. Mulherin, 233 Ga. 606, 212 S.E.2d 788 (1975); Herring v. Herring, 134 Ga. App. 766, 216 S.E.2d 642 (1975); Barnett v. Mobley, 236 Ga. 565, 224 S.E.2d 406 (1976); Young v. Climatrol S.E. Distrib. Corp., 237 Ga. 53, 226 S.E.2d 737 (1976); Hogan v. City-County Hosp., 138 Ga. App. 906, 227 S.E.2d 796 (1976); Pickett v. Paine, 139 Ga. App. 508, 229 S.E.2d 90 (1976); Little v. Thompson Co., 140 Ga. App. 238, 230 S.E.2d 316 (1976); McKissic v. Kresge, 141 Ga. App. 604, 234 S.E.2d 96 (1977); Karlsberg v. Hoover, 142 Ga. App. 590, 236 S.E.2d 520 (1977); Malloy v. Aetna Cas. & Sur. Co., 143 Ga. App. 212, 237 S.E.2d 692 (1977); Craig Mtg. Co. v. Lanier Hosp., 144 Ga. App. 147, 240 S.E.2d 324 (1977); Ray v. Williams, 144 Ga. App. 155, 240 S.E.2d 577 (1977); Whitehead v. Great Cent. Ins. Co., 144 Ga. App. 422, 241 S.E.2d 302 (1977); ITT Indus. Credit Co. v. Burnham, 152 Ga. App. 641, 263 S.E.2d 482 (1979); City of Atlanta v. Barton, 153 Ga. App. 426, 265 S.E.2d 345 (1980); Neese v. Long, 178 Ga. App. 105, 341 S.E.2d 861 (1986); Battallia v. City of Columbus, 199 Ga. App. 897, 406 S.E.2d 290 (1991); Rewis v. Shaw, 208 Ga. App. 876, 432 S.E.2d 617 (1993); Crown Diamond Co. v. N.Y. Diamond Corp., 242 Ga. App. 674, 530 S.E.2d 800 (2000); Wilbanks v. State, 251 Ga. App. 248, 554 S.E.2d 248 (2001); Carter v. State, 267 Ga. App. 520, 600 S.E.2d 637 (2004); Purvis v. State, 288 Ga. 865, 708 S.E.2d 283 (2011); Pistacchio v. Frasso, 314 Ga. App. 119, 723 S.E.2d 322 (2012).