Meadows v. Costoff

• Court: Arkansas Supreme Court
• Writing for the Court: McFADDIN
• Citation: Meadows v. Costoff, 252 S.W.2d 825, 221 Ark. 273 (Ark. 1952)
• Decision Date: 01 December 1952
• Docket Number: No. 4-9843,4-9843
• Parties: MEADOWS v. COSTOFF.

Page 825

252 S.W.2d 825

221 Ark. 273

MEADOWS v. COSTOFF.

No. 4-9843.

Supreme Court of Arkansas.

Dec. 1, 1952.

Charles Eddy, Morrilton, Bob Bailey and Bob Bailey, Jr., Russellville, for appellant.

Robert J. White, Russellville, for appellee.

McFADDIN, Justice.

Appellee has filed motion to strike the bill of exceptions, as filed too late. We now deny the motion; but, because of the question presented, we are delivering this written opinion. We hold that it is unnecessary for a chancery decree to fix the time for filing the bill of exceptions since Act 139 of 1951 fixes such time. ¹

I. Date Of Decree. Mrs. Meadows sued Costoff in the Northern District of the Logan Chancery Court. The testimony was taken ore tenus on May 24 and May 29, 1951; and the cause taken under advisement. On October 1, 1951, the Chancellor informed the attorneys of his decision, but left it to them to prepare a precedent for decree to be submitted to him for approval. The decree as finally prepared and signed was not filed with the Clerk until January 8, 1952. Under these circumstances,--this being a vacation decree--we hold that the decree was not effectively rendered until January 8, 1952. See Red Bud Realty Co. v. South, 145 Ark. 604, 224 S.W. 964; and Jelks v. Jelks, 207 Ark. 475, 181 S.W.2d 235.

II. Time For Filing The Bill Of Exceptions. In the decree of January 8, 1952, no time was given for filing the bill of exceptions. The terms of the Chancery Court for the Northern District of Logan County are the second Mondays in February June and October of each year. This decree of January 8, 1951, was rendered in the October, 1951, term, which ended on the convening of the February, 1952, term; and the bill of exceptions in this case was not approved and filed until March 24, 1952, which was a day in the next succeeding term after the decree was rendered. Under our old cases, where no time was given for filing the bill of exceptions, then the right to file the bill ended with the term in which the decree was rendered. See Ogletree v. Welker, 185 Ark. 805, 49 S.W.2d 1054; McGraw v. Berry, 152 Ark. 452, 238 S.W. 618; and other cases on page 58 of C. R. Stevenson's Book on Supreme Court Procedure, 1948 Edition.

But there has been a consistent course of Legislative enactments and judicial opinions liberalizing the rule of the aforesaid cases. By Act No. 10 of 1943, the Legislature gave the trial judge power to extend the time for filing the bill of exceptions, declaring: '* * * this may be done by the Judge in vacation as well as in court, and may be done after as well as before the expiration of any time previously given.' In Floyd v. Richmond, 211 Ark. 177, 199 S.W.2d 754, we applied the liberalizing effects of said Act No. 10.

Then by Act No. 90 of 1949, the Legislature again sought to liberalize the rule of our previous cases by allowing the bill of exceptions to be filed '* * * but not beyond the succeeding term'. The purpose of this Act was to clearly show that the end of the term had no effect on the power of the Court to approve the bill of exceptions; and Yahraus v. Continental Oil Co., 218 Ark. 182, 235 S.W.2d 544, was decided under the terms of the said Act No. 90.

Still, however, there remained some uncertainties in procedural requirements, as evidenced by such cases as Johnson v. U. S. Gypsum Co., 217 Ark. 264, 229 S.W.2d 671; Criner v. Criner, 217 Ark. 722, 233 S.W.2d 393; and Prescott, Arkansas Telephone Corp. v. McFarland, 217 Ark. 731, 233 S.W.2d 70. So the Legislature passed Act No. 139 of 1951, which had for its purpose (as stated in the caption): 'to Make Uniform Throughout All Chancery Districts in the State of Arkansas the Law Governing the Filing and Preservation for Use on Appeal of Evidence Filed and Introduced in the Courts of the Several Chancery Districts of the State of Arkansas'.

Section 3 of said Act 139 says that '* * * a complete record of the proceedings shall be made * * * and filed with the clerk of the court * * * not less than twenty days before the expiration of the time allowed for appeal.' The clear purpose of the quoted language was to definitely fix a uniform time for filing of the bill of exceptions in Chancery cases. Section 4 of the Act 139 says: 'The Chancellor may * * * approve and sign the record * * *'--meaning, of course, the record filed in accordance with Section 3 as above mentioned. Section 4 of the Act also says:

'Upon the approval of the transcribed record, as herein provided, the same shall constitute a bill of exceptions and become a part of the record.'

It is evident that the purpose of this Act No. 139 was to allow the Chancellor to approve any bill of exceptions filed '* * * not less than twenty days before the expiration of the time allowed for appeal.' This...