Brady v. Alken, Inc., 81-40

• Decision Date: 15 June 1981
• Docket Number: No. 81-40,81-40
• Citation: 617 S.W.2d 358,273 Ark. 147
• Parties: James Edward BRADY, Jr., and Billy Joe Coggins, Appellants, v. ALKEN, INC., Appellee.
• Court: Arkansas Supreme Court

Page 358

617 S.W.2d 358

273 Ark. 147

James Edward BRADY, Jr., and Billy Joe Coggins, Appellants, v. ALKEN, INC., Appellee.

No. 81-40.

Supreme Court of Arkansas.

June 15, 1981.

Thomas G. Montgomery, West Memphis, for appellants.

Butler, Hicky & Hicky by Stephen A. Routon, Forrest City, for appellee.

PURTLE, Justice.

The jury returned a verdict for $3,000 in favor of appellee and the court awarded an additional $2,000 for attorney's fee. Appellants appealed from the award of attorney's fee, but the appeal was dismissed by the trial court for failure to comply with Rules of Appellate Procedure. On appeal, the appellants contend that the trial court erred in dismissing the appeal and in granting the attorney's fee. We agree with both arguments.

The appellee filed a suit against the appellants, pursuant to a lease contract between the parties, alleging the appellants owed $13,500 in rent and a reasonable attorney's fee. By agreement of the parties the matter of the attorney's fee was reserved to the court and the matter of the rent was submitted to the jury. March 19, 1980, the jury returned a verdict in favor of appellee in the amount of $3,000 for rent. The court added $2,000 as attorney's fee, and the judgment was entered on April 16, 1980. Notice of appeal from the portion of the judgment granting attorney's fee was given by the appellants on May 9, 1980, and it stated that the transcript of the trial court "will be requested." The appellants' attorney mailed a copy of the notice of appeal to the appellee's attorney and called attention to the fact that they would try to settle the record later. At the same time notice of appeal from the attorney's fee portion of the judgment was given, the appellants paid the $3,000 judgment awarded by the jury.

On July 17, 1980, the appellants' attorney proposed to appellee's attorney a supplemental record for appeal purposes. When no response was given, the appellants made a complete designation of the record on July 18, 1980. At the same time they filed a motion to supplement the record. On August 1, 1980, appellee moved to dismiss the appeal because of failure to designate the record in the notice of appeal. On August 4, 1980, appellants moved for an extension of time in which to lodge the record in the appellate court. The extension of time, until October 15, 1980, was granted the next day. The appellants responded to the motion to dismiss on August 18, 1980. An amendment to the notice of appeal and designation of record was filed on September 3, 1980. On the same date the trial court, without notice or hearing, signed an order dismissing the appeal. On September 8, 1980, the second notice of appeal was filed. This notice included an appeal from the order dismissing the first appeal.

We first consider the contention that the trial court erred in dismissing the appeal. There is no question that the trial court still had jurisdiction of the case when the order of dismissal was entered because the record had not yet been lodged in the appellate court. Estes v. Masner, 244 Ark. 797, 427 S.W.2d 161 (1968).

Arkansas Rules of Appellate Procedure, Rule 3(e), states:

Content of Notice of Appeal or Cross-Appeal. A notice of appeal or cross-appeal shall specify the party or parties taking the appeal; shall designate the judgment, decree, order or part thereof appealed from and shall designate the contents of the record on appeal. The notice shall also contain a statement that the transcript, or specific portions thereof, have been ordered by the appellant.

The Reporter's Notes (as revised by the Court) to Rule 3 state that significant changes to prior Arkansas procedures are found in Sections (e) and (f):

In Section (e), it provided that the notice of appeal shall contain a designation of the record, ... and shall contain a statement that the transcript has been ordered. The latter statement is intended to expedite appeals.

As it was the intention of the legislature and the Supreme Court that the Rules of Appellate Procedure would prevail in the event of a conflict with a statute not specifically superseded, we hold that Ark.Stat.Ann. § 27-2106.2 (Repl.1979) has been superseded by Rule 3(e) insofar as the Rule requires designation of the record and a statement that the transcript has been ordered to be included in the notice of appeal. See Act 38 of 1973, Per Curiam Order of December 18, 1978, and the Supersession Rule which is found following Rule 10 of the Inferior Court Rules.

We must now decide whether the designation of the record and the statement that the transcript has been ordered must be included in the notice of appeal, or whether, under the circumstances of this case, substantial compliance is sufficient.

Under prior case law, the question of whether an appeal should be dismissed for want of strict compliance with the statutes and rules turned on whether the appellee was prejudiced by the irregularity. Davis v. Ralston Purina Co., 248 Ark. 14, 449 S.W.2d 709 (1970); Pine Bluff National Bank v. Parker, 253 Ark. 966, 490 S.W.2d 457 (1973); Harbor v. Campbell, 235 Ark. 492, 360 S.W.2d 758 (1962). Since the purpose of the Rules of Appellate Procedure was basically to revise and condense prior statutory law, and the Rules were adopted for the purpose of expediting appeals, it appears that prior cases would be persuasive in this matter. In Davis v. Ralston Purina Co. we stated:

... The filing of a notice of appeal is jurisdictional, but irregularities in the other procedural steps ... are merely grounds for such action as this court deems appropriate.

In the present case we do not find that the irregularity in any manner prejudiced or misled the appellee.

Here, the appellants stated at the time they filed notice of appeal that the transcript "will be requested." It is obvious the...