Davis v. Ralston Purina Co.

• Decision Date: 09 February 1970
• Docket Number: No. 5--5180,5--5180
• Citation: 248 Ark. 14,449 S.W.2d 709
• Parties: Monroe DAVIS et al., Appellants, v. RALSTON PURINA COMPANY et al., Appellees.
• Court: Arkansas Supreme Court

Page 709

449 S.W.2d 709

248 Ark. 14

Monroe DAVIS et al., Appellants, v. RALSTON PURINA COMPANY et al., Appellees.

No. 5--5180.

Supreme Court of Arkansas.

Feb. 9, 1970.

Williams & Gardner, Russellville, for appellants.

Laws & Schulze, Russellville, for appellees.

GEORGE ROSE SMITH, Justice.

The appellees have filed a motion to dismiss this appeal, on the ground that the appellants have failed to bring up all the testimony designated by the appellees for inclusion in the record. In response to that motion the appellants assert that the appellees' supplemental designation of the record was filed too late and that in any event an appellant's failure to file the complete record is not in itself a basis for a dismissal of his appeal. We are disposing of the motion by means of an opinion, for some of the procedural points need clarification.

The chronological sequence of the procedural steps must be stated as a background to the present controversy:

April 21: Judgment entered below upon the jury's verdict.

May 5: Appellants file what is in substance a motion for a new trial.

May 16: Appellants file notice of appeal from the judgment and designate the entire record as the record on appeal. Service had on opposing counsel.

June 26: Order filed denying the appellants' motion for a new trial.

July 7: Appellants file, and serve upon opposing counsel by mail, a notice of appeal from the preceding order and a designation of only part of the testimony. No statement of points to be relied upon on appeal was filed by the appellants at any time.

July 18: Appellees file, and serve upon opposing counsel by mail, a designation of all the record not already designated by the appellants.

August 17: Trial court signs an order granting to the appellants an additional 45 days for filing their transcript with the clerk of the Supreme Court.

August 29: Court reporter certifies a transcription of the testimony designated by the appellants.

October 3: Circuit clerk certifies the partial record as designated by the appellants.

October 27: Foregoing partial record filed by the appellants with the clerk of the Supreme Court.

We consider first the appellants' contention that the appellees' supplemental designation of the record was filed too late, because it was filed and served on the eleventh day after counsel for the appellants had filed and served their partial designation. Upon this point the appellants rely upon § 8 of Act 555 of 1953, which provides that a supplemental designation of the record is to be filed within ten days after the service and filing of the appellant's partial designation. Ark.Stat.Ann. § 27--2127.2 (Repl. 1962).

We cannot sustain the appellants' argument, for two reasons. First the filing of a notice of appeal is jurisdictional, but irregularities in the other procedural steps under Act 555 are merely grounds for such action as this court deems appropriate. Section 27--2106.1. The one-day delay in this instance was obviously not prejudicial to the appellants, since the court reporter did not complete his transcription of the testimony until some ten days later.

Secondly, it is actually to the appellants' advantage that the complete record be filed. The appellants committed what may have been a serious error in failing to file with their designation of the record a statement of the points to be relied upon on appeal, as required by § 27--2127.5, because that omission is a basis for a dismissal of the appeal unless we are able to say that the appellees have not been prejudiced. Jones v. Adcock, 233 Ark. 247, 343 S.W.2d 779 (1961). But the appellant's failure to file his statement of points becomes harmless error if the appellee nevertheless designates the entire record for inclusion in the transcript....