Smith v. McTaggart
Smith v. McTaggart
Opinion
*144 Grady Smith appeals from a final order in child custody proceedings with Rosita McTaggart. On appeal, Smith argues that the trial court abused its discretion when it denied his motion for continuance prior to the final hearing after Smith discovered that his counsel was not a member of the State Bar of Georgia and could not represent him.
*145 In her response brief, McTaggart argues that the Court of Appeals does not have jurisdiction over this case because Smith failed to file a timely notice of appeal. We agree.
"The proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court."
Gibson v. State
,
As Smith correctly notes, according to OCGA § 1-3-1 (d) (3),
When a period of time measured in days ... is prescribed for the ... discharge of any duty, the first day shall not be counted but the last day shall be counted ... When the last day prescribed for such action falls on a public and legal holiday as set forth in Code Section 1-4-1, the party having the privilege or duty shall have through the next business day to exercise the privilege or to discharge the duty.
Critical to this matter, however, OCGA § 1-4-1 only pertains to holidays that are designated as public and legal holidays by the federal government (subsection (a) (1)) and dates that are "designated and proclaimed by the Governor as public and legal holidays" (subsection (a) (2)). This Court takes judicial notice of the fact that March 25, 2016, was not a federal holiday 1 and was not declared a public and legal holiday by the Governor of Georgia. 2
In
In re Estate of Dasher
,
3
as here, the 30-day deadline for filing a notice of appeal ran on Good Friday, a day on which the relevant county court was closed in observance of the holiday. This Court noted
*146
in
Dasher
that, under OCGA § 1-4-1, "Good Friday is not a public or legal holiday[.]"
Id
. at 203,
Smith has pointed this Court to no authority suggesting that
Dasher
was wrongly decided or that OCGA § 1-4-1 provides relief for instances in which local government offices are closed for holidays or observances designated by authorities other than the federal government or the Governor of Georgia.
Cf.
Parsons v. Capital Alliance Financial, LLC
,
*231
Potter-Miller v. Reed
,
This outcome, while unfortunate, was avoidable. We note that the parties' briefs omit any discussion of alternate accommodations, if any, made by the Superior Court Clerk of Newton County in regard to handling filings sought to be made on March 25, 2016 while the office was closed in observance of the Good Friday holiday.
Dasher
and
State of Ga. v. Jones
,
Further, as this Court noted in Dasher ,
[O]bviously a document cannot be filed if the clerk's office is closed and no provision is made for filing, but a party is not without recourse even in this situation. Under [ OCGA § 5-6-39 (a) (1) ], "[a]ny ... judge of the appellate court to which the appeal is to be taken may, in his discretion, and without *147 motion or notice to the other party, grant extensions of time for the filing of [a] [n]otice of appeal."
Id
. at 203,
Had Smith attempted to file his notice of appeal on March 25, 2016, and found that he was unable to do so for any reason, he could have asked this Court to grant an extension of time in which to file the notice of appeal under OCGA § 5-6-39 (a) (1). As March 25, 2016, was not a state holiday, "[t]he appellate courts of this state were open and available to consider a request to extend the time[.]"
Id
. at 204, n. 3,
Appeal dismissed .
McFadden, P. J., and Branch, J., concur.
See Snow & Dismissal Procedures, Federal Holidays, https://www.opm.gov/policy-data-oversight/snow-dismissal-procedures/federal-holidays/#url=2016 (last visited October 5, 2017).
See Governor Nathan Deal, 2016 State Holidays, http://team.georgia.gov/wp-content/uploads/2016/08/2016-State-Holidays.pdf (August 5, 2015).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.