Art. VI, Sec. IX, Para. II. Disposition of cases.

In light of the similarity of the provisions, decisions under former Ga. Const. 1976, Art. VI, Sec. II, Para. V and antecedent provisions, relating to the effect of delay or lack of preparation by plaintiff in error and the effect of the clerk’s failure to transfer the bill of exceptions or record, are included in the annotations for this paragraph. See also Ga. Const. 1983, Art. VI, Sec. V, Para. III for decisions relating to taking of appeals. This paragraph forbids dismissal of action where delay is attributable to clerk of court rather than to counsel. AMOCO v. McCluskey, 116 Ga. App. 706, 158 S.E.2d 431 (1967), rev’d on other grounds, 224 Ga. 253, 161 S.E.2d 271 (1968) (see Ga. Const. 1983, Art. VI, Sec. IX, Para. II). Court of Appeals is controlled by this paragraph and dismisses appeals when delays in transmission are due to the fault of appellant. Brookshire v. J.P. Stevens Co., 133 Ga. App. 97, 210 S.E.2d 46 (1974) (see Ga. Const. 1983, Art. VI, Sec. IX, Para. II). Supreme Court will not consider appeal which represents stale one caused by laches of appellant, and it is dismissed under the authority of this section. George v. American Credit Control, Inc., 222 Ga. 512, 150 S.E.2d 683 (1966); Elliott v. Leathers, 223 Ga. 497, 156 S.E.2d 440 (1967); Fahrig v. Garrett, 224 Ga. 817, 165 S.E.2d 126 (1968) (see Ga. Const. 1983, Art. VI, Sec. IX, Para. II). Section allowing extension of time for filing appeal not to be construed

Hearing of cases at first term, and cases not disposed of during term, § 5-6-3. Schedule of terms of Court of Appeals and Supreme Court, §§ 15-2-4 and 15-3-2.

For article, ‘‘Setting the Record Straight: A Proposal to Save Time and Trees,’’ see 14 Ga. St. B.J. 14 (2008). For article, ‘‘‘May It Please the Court:’ Tips on Effective Appellate Advocacy from Start to Finish,’’ see 16 (No. 1) Ga. St. B.J. 28 (2010). For article, ‘‘Eleventh Circuit Survey: January 1, 2013 — December 31, 2013: Special Contribution: Open Chambers: Demystifying the Inner Workings and Culture of the Georgia Court of Appeals,’’ see 65 Emory L. J. 831 (2014). For comment on Davis v. Davis, 222 Ga. 579, 151 S.E.2d 123 (1966), see 4 Ga. St. B.J. 259 (1967).

1976 Constitution.

Art. VI, Sec. II, Para. V.

Paragraph imperative.

This paragraph imperatively requires that all cases brought to the Supreme Court or the Court of Appeals shall be heard at the first term, unless continued for providential cause and that all cases shall be decided not later than the end of the term following that at which they are heard. Atlantic Coast Line R.R. v. Georgia Sweet Potato Growers’ Ass’n, 171 Ga. 30, 154 S.E. 698, answer conformed to, 42 Ga. App. 82, 154 S.E. 915 (1930) (see Ga. Const. 1983, Art. VI, Sec. IX, Para. II). preme Court in time to be heard at first term, the Supreme Court is without jurisdiction to hear and determine the cause. Dixie Realty Fin. Co. v. Morgan, 171 Ga. 348, 155 S.E. 468 (1930). When cases deemed entered on docket following Supreme Court transfer or remand to Court of Ap-

Where case does not reach Su-peals.

For the purpose of compliance by the appellate courts with the two-term rule, cases transferred or remanded by the Supreme Court to the Court of Appeals will be considered as entered on the court’s docket for hearing on the day the remittitur from the Supreme Court is received in the Court of Appeals. CC Fin., Inc. v. Ross, 250 Ga. 832, 301 S.E.2d 262 (1983).

Disposal must be in current term.

Appellate court lacked the authority to stay the case because the appellate court had to dispose of the action during the term in which the case was entered on the court’s docket. Boardman v. Brenninkmeijer, 328 Ga. App. 882, 763 S.E.2d 267 (2014). Appeal disposed of within two General Consideration (Cont’d)

terms.

Where, although an appeal was filed in the September 1986 term of court, it was docketed for hearing during the January 1987 term, the disposition of the appeal during the April 1987 term complied with the ‘‘two-term rule’’ of this Paragraph. Superb Carpet Mills, Inc. v. Thomason, 183 Ga. App. 554, 359 S.E.2d 370, cert. denied, 183 Ga. App. 907, 359 S.E.2d 370 (1987) (see Ga. Const. 1983, Art. VI, Sec. IX, Para. II). Cited in Palmer v. State, 173 Ga. 535, 160 S.E. 637 (1931); Vann v. Wardlaw, 180 Ga. 573, 179 S.E. 726 (1935); Fuqua v. Hadden, 190 Ga. 361, 9 S.E.2d 243 (1940); Bethlehem Steel Co. v. Spivey, 62 Ga. App. 693, 9 S.E.2d 702 (1940); Byrd v. Goodman, 192 Ga. 466, 15 S.E.2d 619 (1941); Livingston v. Barnett, 193 Ga. 640, 19 S.E.2d 385 (1942); Fort Oglethorpe v. Catoosa County, 80 Ga. App. 188, 55 S.E.2d 753 (1949); Rutherford v. Tidwell, 103 Ga. App. 557, 120 S.E.2d 38 (1961); Smith v. Barnett, 107 Ga. App. 849, 132 S.E.2d 139 (1963); Wallace v. Willis, 111 Ga. App. 576, 142 S.E.2d 383 (1965); Davis v. Davis, 222 Ga. 579, 151 S.E.2d 123 (1966); Hornsby v. Rodriguez, 116 Ga. App. 234, 156 S.E.2d 830 (1967); O’Quinn v. State, 121 Ga. App. 231, 173 S.E.2d 409 (1970); Baxter v. Long, 122 Ga. App. 500, 177 S.E.2d 712 (1970); Massey v. State, 227 Ga. 257, 181 S.E.2d 71 (1971); Southeastern Plumbing Supply Co. v. Lee, 232 Ga. 626, 208 S.E.2d 449 (1974); Tamplin v. State, 235 Ga. 774, 221 S.E.2d 455 (1975); Brown v. State, 236 Ga. 333, 223 S.E.2d 642 (1976); Smith v. Branch, 226 Ga. App. 626, 487 S.E.2d 35 (1997). Plaintiff’s or Clerk’s Error

as requiring dismissal.

To construe Ga. L. 1965, p. 18, § 6 (see now O.C.G.A. § 5-6-39) as requiring dismissal where an appellant did not cause the delay and the trial judge declined to grant a requested extension would shut off the right of appeal, and would thus violate the mandate of this paragraph. Such a construction would also be contrary to the legislative intent expressed in Ga. L. 1965, p. 18, §§ 13 and 23 (see now O.C.G.A. §§ 5-6-48 (b), (c), and (d) and 5-6-30) as to a decision upon the merits. Elliott v. Leathers, 223 Ga. 497, 156 S.E.2d 440 (1967) (see Ga. Const. 1983, Art. VI, Sec. IX, Para. II). Section stating that cause not to be dismissed where extension granted is

in accordance with this paragraph.

Ga. L. 1965, p. 18, § 12 (see now O.C.G.A. § 5-6-43) follows this paragraph by stating that a cause shall not be dismissed if the clerk is unable to transmit the record within the time specified (15 days) or when the judge grants an extension of time, and the judge shall attach a certificate attesting to the cause of the delay. George v. American Credit Control, Inc., 222 Ga. 512, 150 S.E.2d 683 (1966) (see Ga. Const. 1983, Art. VI, Sec. IX, Para. II). Cause for late filing of transcript is fact issue for determination in the trial court. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Echols, 138 Ga. App. 593, 226 S.E.2d 742 (1976). Issue of late filing of a transcript waived if not raised and determined in trial court. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Echols, 138 Ga. App. 593, 226 S.E.2d 742 (1976). Illness of trial court clerk does not

excuse failure to transmit record.

Where plaintiff in error failed to certify and transmit the record within the time required by law because of illness of the clerk of the trial court and the lack of clerical help, this did not prevent the dismissal of the case for want of jurisdiction of the Supreme Court to hear the case after the first term. Dixie Realty Fin. Co. v. Morgan, 171 Ga. 348, 155 S.E. 468 (1930). Failure to pay bond results in dis-

missal.

Where a pauper’s affidavit is held not to be good, and appellant is ordered to make a supersedeas bond within three days but fails to do so and causes a delay of 70 days, the appeal is dismissed. George v. American Credit Control, Inc., 222 Ga. 512, 150 S.E.2d 683 (1966). Costs must be paid before record

transmitted.

All costs shall be paid in the court below or the appellant shall make an affidavit that the appellant is unable to pay such costs before the clerk transmits the record to the appellate court. Pickett v. Paine, 139 Ga. App. 508, 229 S.E.2d 90 (1976). peals cannot require lower court judge to issue writ returnable for

Supreme Court and Court of Ap-purpose of trial.

While the Supreme Court may aid a party by the writ of mandamus to bring to it the party’s case from the lower court, as by issuing the writ to compel the judge to certify a bill of exceptions or to require the proper officers to perform their legal duties in reference to such proceeding, it is without any power or jurisdiction to require the judge of the lower court to issue a writ returnable before the judge for the purpose of trial. This rule is equally applicable to the Court of Appeals. McPhail v. Bagley, 96 Ga. App. 179, 99 S.E.2d 500 (1957).

ALR.

Award of damages for dilatory tactics in prosecuting appeal in state court, 91 ALR3d 661.