Dye v. Turner Concrete, Inc.

Pannell, Judge,

dissenting.

The enumeration of errors in this case was filed July 2, 1968. The case was docketed in this court on June 21, 1968, and due notice of that fact given. Under the rules of this court, appellant has ten days to file an enumeration of errors. Due date for filing was July 1, 1968. There is an affidavit by a lady which designates her as secretary for appellant’s attorney and which states that on the 29th day of June, 1968, at 11:30 a.m., she deposited in the mail three copies of the enumeration of errors, three copies of the brief and a check for costs, that the envelope was properly addressed, etc., and with proper postage, and that the post office employee assured her it would be sent in the next mail. It states further “that under normal and usual conditions, the said papers would have been delivered to the clerk’s office on the 1st day of July, 1968. It appears from the record that it was received in this office on July 2, 1968. Motion to dismiss the appeal was filed by appellee. It stated that “counsel for appellee did not receive the copies until July 6, 1968, which caused a hardship upon counsel for the appellee in meeting their own deadline for filing their brief.”

*81In my opinion, the late filing of the enumerations of error, no providential cause being shown, is ground for dismissal. I, therefore, dissent from this case on the same grounds stated in my dissent in Ewing v. Whitehead, 119 Ga. App. 72. The appeal here should, on motion, be dismissed.

I am authorized to state that Judges Eberhardt, Deen, and Quillian concur in this dissent.