¶1concurring.
¶2I fully agree with the majority’s opinion and conclusion. I also agree with the majority that the resolution of the issue discussed in Division 1 renders it unnecessary for us to resolve Ms. Durden’s remaining enumeration of error. However, because, in a vacuum, that enumeration may have had merit, I will address it briefly.
¶3With regard to Case No. S98A0907, involving appellant Melonie Durden, the trial court, in addition to dismissing for the untimely transcript, dismissed Ms. Durden’s appeal after finding that she was in default. At the hearing on the motion to dismiss, Ms. Durden asserted that she had filed a timely answer, but the trial court refused her request to take judicial notice thereof. The record shows that Ms. Durden did file a timely answer. Whether a trial court will take judicial notice of its own records in another case is a matter which rests within its discretion. Petkas v. Grizzard, 252 Ga.104 (312 SE2d 107) (1984). However, the answer filed by Ms. Durden was a part of the record in the very case under consideration by the trial court. “It is settled law that a court will take judicial notice of its own records in the immediate case or proceedings before it. [Cits.]” (Emphasis supplied.) Roberts v. Roberts, 201 Ga. 357, 359 (39 SE2d 749) (1946). Thus, it is incumbent upon a court to take judicial notice of the record in the case which is then under its consideration, either on its own motion or at the suggestion of counsel. See Frank v. State, 142 Ga. 741, 761 (3) (83 SE 645) (1914). Therefore, I believe that the trial court erred in refusing Ms. Durden’s request and in predicating the dismissal of the appeal on her failure to produce evidence of a timely-filed answer.
¶4However, as stated, the majority is absolutely correct with regard to the untimely transcript. Therefore, the error in failing to take judicial notice of Ms. Durden’s answer is hot of any moment in this particular case.
¶5I am authorized to state that Justice Hunstein joins in this opinion.