dissenting.
In this case the majority has declined review on the merits and has dismissed this appeal because of the late filing of the enumeration of errors by the appellant. As I understand the law of this state a party litigant cannot be denied review of his case by this court just because the litigant’s attorney negligently files the enumeration of errors a few days late. I therefore dissent.
On December 4, 1973, this court ordered that counsel for the appellant file an enumeration of errors in this case no later than 4:30 p.m. December 10, 1973. On December 11,1973, appellant’s brief was filed in this court and it contained an enumeration of errors. A certificate of counsel attached to this enumeration of errors contained in the brief certified that a copy of the appellant’s enumeration of errors was served on counsel for the appellee on the ninth day of December, 1973. On December 13, 1973, a separate document designated as *159appellant’s enumeration of errors, and being identical with the one contained in the brief, was filed in this court. It likewise showed service on opposing counsel on the ninth day of December, 1973.
Under these circumstances it is my position that this court must review this case on its merits, and the appeal cannot be dismissed.
The Constitution of Georgia (Code Ann. § 2-3704) provides in pertinent part as follows: "The General Assembly . . . may prescribe conditions as to the right of a party litigant to have his case reviewed by the Supreme Court or Court of Appeals.”
Pursuant to this constitutional authorization the General Assembly enacted the Appellate Practice Act of 1965. Code Ann. § 6-905, a part of the Appellate Practice Act of 1965, provides as follows: "It is the intention of this law to provide a new procedure for taking cases to the Supreme Court and Court of Appeals, as authorized in the Constitution of 1945, Art. VI, Sec. II, Par. IV (Code Ann. § 2-3704), and, to that end, this law shall be liberally construed so as to bring about a decision on the merits of every case appealed, and to avoid dismissal of any case or refusal to consider any points raised therein, except as may be specifically referred to herein.”
Code Ann § 6-809 (b), also part of the Appellate Practice Act of 1965, provides in part as follows: "No appeal shall be dismissed or its validity affected for any cause or consideration of any enumerated error refused, except for: (1) failure to file notice of appeal within the time required as provided in this law or within any extension of time granted hereunder; (2) where the decision or judgment is not then appealable; or (3) where the questions presented have become moot.”
As I read the Constitution of Georgia and the Appellate Practice Act of 1965 this court cannot deny review of a litigant’s case on its merits except for one or more of the three reasons stated in Code Ann. § 6-809 (b).
It is therefore my view that this appeal cannot be dismissed. This case should be reviewed on its merits by this court; and the judgment below should either be affirmed or reversed or vacated with direction.
I respectfully dissent.