Street v. Kurzinski
| Decision Date | 20 October 1986 |
| Parties | William STREET, Appellant, v. Allen D. KURZINSKI and American Machine Builders, Inc., Appellees. |
| Court | Arkansas Supreme Court |
MOTION FOR RULE ON CLERK; MOTION DENIED.
When the appellant sought to appeal this case by filing the record, the clerk refused to accept it, explaining that the appellant had filed two notices of appeal and that it was not clear which one was controlling in the calculation of the time for lodging the appeal. The clerk suggested to Street's attorney that he file a motion under Rule 5 to require the clerk to docket the case. That motion is now before us. Since the fact situation has not previously been ruled upon, this opinion is written to explain why the tender of the record in this case was too late.
Street brought this action for defamation against Kurzinski and his employer, American Machine Builders. Street obtained a verdict against Kurzinski, but the trial judge directed a verdict in favor of AMB for want of proof that Kurzinski was acting in the scope of his employment in defaming Street. The two-day trial ended on September 17, 1985, but apparently as a result of post-trial motions the final judgment was not entered until January 17. During the interval, Street filed a motion for judgment n.o.v., which the court denied in an order filed on December 31. On November 27 Kurzinski filed a motion for judgment n.o.v. or alternatively for a new trial, but the record discloses no action of any kind on that motion during the 30 days allowed by Rule 4(c) of the Rules of Appellate Procedure. Consequently the motion was deemed under that rule to have been denied at the expiration of 30 days after its filing, and the court lost jurisdiction to act upon it. Smith v. Boone, 284 Ark. 183, 680 S.W.2d 709 (1984); Coking Coal v. Arkoma Coal Corp., 278 Ark. 446, 646 S.W.2d 12 (1983). It is immaterial that the motion was filed before the entry of judgment, for it is plain that the trial court can grant or deny a motion for judgment n.o.v. or a motion for a new trial before a formal judgment on the verdict is entered. That procedure is not uncommon.
On January 17 the court entered a final judgment upon the verdict in favor of Street. The judgment awarded $35,000 in damages against Kurzinski and recited that the plaintiff's cause of action against AMB had previously been dismissed (by the order denying the plaintiff's motion for judgment n.o.v.). Street promptly filed a notice of appeal, on January 28.
On January 29 the court entered an order stating that Kurzinski's motions for a new trial and for judgment n.o.v. "are hereby set for hearing on February 11." After that hearing the court's order denying the motions was entered on February 21. On March 3 counsel for Street filed a second notice of appeal reciting, as did the first notice of...
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Phillips v. Jacobs, 90-350
...within that time frame results in loss of jurisdiction to grant the relief requested under the motion. See, e.g., Street v. Kurzinski, 290 Ark. 155, 717 S.W.2d 798 (1986). We have further held that a decision by the trial court within the thirty days which is not entered of record fails to ......
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Lucas v. Wash. Cnty.
...when both parties file notices of appeal or when one party files notices of appeal from different orders." Street v. Kurzinski , 290 Ark. 155, 157, 717 S.W.2d 798, 799 (1986) ; see also Conlee v. Conlee , 366 Ark. 342, 235 S.W.3d 515 (2006) ; Larry v. Grady Sch. Dist. , 362 Ark. 65, 207 S.W......
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Seay v. Wildlife Farms Inc.
...added.) The ninety days contemplated by Rule 5 begins to run from the filing of the first notice of appeal. Street v. Kurzinski, 290Ark. 155, 717 S.W.2d 798 (1986). In this case, that first notice was filed on December 13, 1999, which would have made the record due in the clerk's office on ......
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Deason v. Farmers and Merchants Bank of Rogers, 89-14
...The basis for the argument is that the motion was not ruled on within 30 days of it's filing. That is correct. In Street v. Kurzinski, 290 Ark. 155, 717 S.W.2d 798 (1986), we were presented with a motion for rule on the clerk requiring us to decide which of two notices of appeal was control......