Rossi v. Rossi
| Decision Date | 06 February 1995 |
| Docket Number | No. 94-703,94-703 |
| Citation | 319 Ark. 373,892 S.W.2d 246 |
| Parties | Robert Leo ROSSI, Appellant, v. Ethel Moore ROSSI, Appellee. |
| Court | Arkansas Supreme Court |
Robert J. Brown, Little Rock, for appellant.
William H. Trice III, Little Rock, for appellee.
The final order was entered in this divorce case on December 27, 1993. A notice of appeal was not filed with the clerk of the court that entered the judgment within thirty days. On April 8, 1994, more than ninety days after the entry of the final order, appellant filed a motion entitled "Rule 60 Motion to Correct Misprision by the Clerk." In the motion, appellant admitted that he had not timely filed the notice with the chancery clerk, but asserted that his courier erroneously delivered the notice of appeal to the circuit clerk's office on January 21, 1994. He asked the chancellor to enter a nunc pro tunc order providing that the notice was filed in the chancery court clerk's office on January 21, 1994. After hearing evidence the chancellor denied the motion. Appellant first appeals from the chancellor's ruling on his motion under Rule 60 of the Arkansas Rules of Civil Procedure and second, upon condition that we reverse the ruling on the motion, attempts to appeal from the decree of divorce. We affirm the ruling on the Rule 60 motion and do not reach appellant's arguments on the merits of his attempted appeal.
Rule 3(b) of the Arkansas Rules of Appellate Procedure provides that "[a]n appeal shall be taken by filing a notice of appeal with the clerk of the court which entered the judgment, decree, or order from which the appeal is taken." Rule 4(a) provides that the notice of appeal "shall be filed within thirty (30) days from the entry of the judgment, decree or order appealed from," with exceptions not applicable to this case. Appellant argues that he substantially complied with Rules 3 and 4. Substantial compliance is not sufficient. The failure to file a timely notice of appeal deprives the appellate court of jurisdiction. Reynolds v. Spotts, 286 Ark. 335, 692 S.W.2d 748 (1985). While it is true that some irregularities in the form of a timely notice of appeal do not deprive the appellate court of jurisdiction, the failure to give the notice in a timely manner is fatal to an appeal. Henderson Methodist Church v. Sewer Improvement Dist. No. 142, 294 Ark. 188, 741 S.W.2d 272 (1987). Here, the courier was an agent or employee of the attorney, and it was his fault that the notice of appeal was not timely filed with the clerk of the court that entered the judgment.
Appellant asks us to make an exception in this case because, he contends, a clerical error by the circuit clerk was the reason for his failure to timely give the notice of appeal to the chancery clerk, and, since it was the circuit clerk's error, the chancellor erred in refusing to order that a notice of appeal be entered nunc pro tunc. The request for an exception in this case is without merit.
The error was not merely an error by the circuit clerk. It was an error by the attorney. Nunc pro tunc orders are not to correct errors by an attorney. It is the duty of the attorney, not of the clerk, to perfect an appeal. Edwards v. City of Conway, 300 Ark. 135, 777 S.W.2d 583 (1989). If we were to overrule the holding of Edwards, we would lessen the finality of judgments and bring about additional difficulties because one could not look at the record and determine whether a judgment was final.
Equally important, appellant asks us to hold that the chancellor erred in refusing to issue a nunc pro tunc order stating that the notice of appeal was timely filed in chancery court. Our standard of review in such cases is well settled.
At all events, the making or refusing of the order rested in the sound discretion of the lower court. Richardson v. State, 169 Ark. 167, 273 S.W. 367; Ward v. Magness, 75 Ark. 12, 86 S.W. 822; 30 Am.Jur. 868; and on appeal, we will not reverse the action of the lower court in refusing to make the order nunc pro tunc unless there was either a clear abuse of discretion, or no substantial legal evidence to support the ruling of the lower court. In Freeman on Judgments (5th Ed.), § 136, it is stated: "In considering the sufficiency of the evidence to sustain an order directing or refusing to direct a nunc pro tunc entry, an appellate court will follow the usual rule governing review of questions of fact and will not disturb the ruling below if it is sustained by any substantial evidence."
Mitchell v. The Federal Land Bank, 206 Ark. 253, 260, 174 S.W.2d 671, 675-76 (1943).
The chancellor did not abuse her discretion in refusing to grant the nunc pro tunc order. A trial court is permitted to enter an order nunc pro tunc when the record is being made to reflect that which occurred but was not recorded due to a misprision of the clerk, but a court may not change the record to do that which should have been done but was not. Canal Ins. Co. v. Arney, 258 Ark. 893, 530 S.W.2d 178 (1975). Here, appellant did not file a notice of appeal with the chancery court clerk within the time allowed, and the chancellor so found. The chancellor even went so far as to state that if appellant had given the court reporter a copy of the notice of appeal within the thirty-day period she might be able to afford relief, but appellant had not timely given the court reporter a copy of the notice of appeal. Under these facts, the chancellor ruled that she could not change the record to do that which should have been done but, in truth, was not done. The chancellor did not abuse her discretion in the ruling. To hold otherwise would require a holding that the chancellor abused her considerable discretion because she did not change the record to reflect something was done when, in truth, it was not done.
Affirmed.
ROAF, J., not participating.
The majority has decided that Robert Rossi's notice of appeal was untimely filed. The majority concludes that although the notice was filed within thirty days of the decree in the correct county, it was filed in the circuit clerk's office and never received in the chancery clerk's office within the required time period. Because this obvious inadvertence could have been corrected had standard courthouse procedures been followed, I would deem the notice timely filed. To do otherwise is to penalize a party, even when clerical error is partially the reason for the defect.
At the hearing on this matter, Susan Inmon, then supervisor of the Civil-Criminal Department of the Pulaski County Circuit Clerk's Office testified:
This particular case, the file number is not one of our cases. In fact it is a closed case so the clerks couldn't even enter it into our system. And when we do realize we have received a Chancery or another Court's filing, particularly Chancery, we will "X" out our file mark on the original, send it through the county's courier to the Chancery Clerk's Office.
This case is sufficiently analogous to the circumstances of Linder v. Howard, 296 Ark. 414, 757 S.W.2d 549 (1988) for that case to be...
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