West v. Smith

• Court: Arkansas Supreme Court
• Writing for the Court: McFADDIN; GEORGE ROSE SMITH; ROBINSON; WARD; GRIFFIN SMITH, C. J., and McFADDIN; ROBINSON; ED. F. McFADDIN
• Citation: West v. Smith, 278 S.W.2d 126, 224 Ark. 651 (Ark. 1955)
• Decision Date: 28 February 1955
• Docket Number: No. 5-633,5-633
• Parties: J. A. WEST, Appellant, v. Charles SMITH et al., Appellees.

Page 126

278 S.W.2d 126

224 Ark. 651

J. A. WEST, Appellant, v. Charles SMITH et al., Appellees.

No. 5-633.

Supreme Court of Arkansas.

Feb. 28, 1955.

On Rehearing April 18, 1955.

Concurring Opinion April 25, 1955.

Dissenting Opinion May 9, 1955.

Melvin E. Mayfield, El Dorado, for appellant.

Spencer & Spencer, El Dorado, for appellees.

McFADDIN, Justice.

This case was docketed under our Rule 5 (as contained in the Rules promulgated January, 1954), so that the appellant could file a motion for a rule on the Clerk of this Court, who had declined to accept the record because he considered it was tendered too late. Since the question here presented arises under Act No. 555 of 1953, we are delivering this opinion as a precedent for future cases.

The tendered record shows the following:

(1) That the Circuit Court judgment was rendered July 15, 1954.

(2) That appellant's ¹ notice of appeal (under Sec. 2 of said Act 555) was filed on August 13, 1954.

(3) That neither side applied to the Circuit Court for an extension of time to file the record, until November 15, 1954 when appellant filed a motion in the Trial Court for extension for the time to file the record (see Sec. 20 of the said Act 555).

(4) That on November 18, 1954, the Trial Court made an order giving the appellant 20 additional days (from that date) in which to file the record; but this order of extension was made more than 90 days after the filing of the notice of appeal and was not made within the period extended by any previous order.

That the record was filed in the Trial Court on November 22, 1954 and tendered in this Court on December 2, 1954.

Two questions, therefore, present themselves: (1) whether the Trial Court could make a valid order on November 18, 1954, under the facts here existing; and (2) whether this Court should allow the record to be filed under our inherent powers.

I. Validity Of The Circuit Court Order Of November 18, 1954. Section 20 of Act 555 of 1953 provides:

'The record on appeal shall be filed with the appellate court and the appeal there docketed within 90 days from the date of filing the notice of appeal; except that, the trial court may prescribe the time for filing and docketing, which in no event shall be less than 90 days from the date of filing the first notice of appeal. In all cases the trial court, in its discretion and with or without motion or notice, may extend the time for filing the record on appeal and docketing the appeal, if its order for extension is made before the expiration of the period for filing and docketing as originally prescribed or extended by a previous order; but the trial court shall not extend the time to a date more than seven months from the date of the entry of the judgment or decree.'

When the present appellant filed his notice of appeal in the Circuit Court no order was made for prescribing the time for filing and docketing the record in the appellate court. So under the above quoted Statute, the time was fixed by law at 90 days from the filing of the notice of appeal (which date was August 13, 1954). The next order made by the Circuit Court was on November 18, 1954, which was more than 90 days from the filing of the notice of appeal. The quoted Statute says that the Trial Court '* * * may extend the time for filing the record on appeal and docketing the appeal, if its order for extension is made before the expiration of the period for filing and docketing as originally prescribed or extended by a previous order; * * *.' Now in the absence of any previous order, the one made by the Circuit Court on November 18th was too late.

But the appellant argues that Section 20 of Act 555 was copied from the Federal Rules, and that when we adopted the Federal Rules, we adopted the construction which the Federal Courts had placed on such Rules; that the Federal Courts allow extensions to be made; and that we should, therefore, allow such extensions. Section 20 of Act 555 comes to us from Section 73(g) of the Federal Rules; ² but there are differences between Section 20 of Act 555 and Section 73(g) of the Federal Rules. ³ Section 20 of Act 555 allows 90 days from the filing of the notice of appeal, whereas Section 73(g) allows only 40 days; and Section 20 of Act 555 allows seven months from judgment for final filing, where as Section 73(g) allows only 90 days. So we did not adopt Section 73(g) verbatim as Section 20 of Act 555.

Furthermore, when we enacted Section 20 of Act 555, we had a long line of decisions in Arkansas on the power of the Trial Court to extend the time for filing the bill of exceptions; ⁴ and this line of decisions had always held that the order of extension had to be made before the expiration of the period as previously fixed. It is far more reasonably to presume that the Arkansas Legislature enacted Act 555 in the light of our own holdings on the power of the Trial Court to extend time, than it is to presume that it enacted Act 555 in the light of particular federal cases--some of which hold one way and some the other. ⁵

An illuminating case is Chandler v. State, 205 Ark. 74, 167 S.W.2d 142. There, the motion for new trial was heard and overruled on September 10, 1942, and the Court allowed the appellant 45 days to prepare, tender and file the bill of exceptions, which was not tendered to the Trial Judge until October 29, 1942, which was later than the 45 days so allowed. As of October 29, 1942, the Trial Judge signed the bill of exceptions, but this was after the expiration of the time he had previously fixed for it to be tendered. We held that the bill of exceptions was filed too late and ordered it stricken, following our earlier cases of Boatright v. State, 195 Ark. 611, 113 S.W.2d 107; and Austin v. State, 183 Ark. 481, 36 S.W.2d 400.

At the time of the decision in Chandler v. State, the Statute on filing a bill of exceptions was contained in § 1543 Pope's Digest, and the pertinent part reads:

'The party objecting to the decision must except at the time the decision is made, and time may be given to reduce the exception to writing, but not beyond the succeeding term; * * *.'

Under that Statute we repeatedly held that the bill of exceptions had to be filed within the time allowed by the Court, and that the parties could not by agreement dispense with such requirement. Faulkner v. Bank of McCrory, 177 Ark. 628, 7 S.W.2d 326. In a long line of cases we held that a bill of exceptions which was not filed within the time required was a nullity and could not be considered on appeal. See Green v. State, 96 Ark. 175, 131 S.W. 463; Austin v. State, 183 Ark. 481, 36 S.W.2d 400; Boatright v. State, 195 Ark. 611, 113 S.W.2d 107. Then came the case of Chandler v. State, 205 Ark. 74, 167 S.W.2d 142, in which we held that the bill of exceptions could not be considered when filed after the time fixed even though the Trial Judge had signed it.

It was to overcome that situation that the Legislature first passed Act 10 of 1943, and then Act 90 of 1949, to specifically allow the extension of time to be granted by the Trial Court even after the expiration of a previously fixed time. ⁶ So when the Legislature passed Act 555 of 1953 there was a long line of decisions in this State that the Trial Court (or Judge thereof), in the absence of express Statute so allowing, had no power to grant an extension of time after the expiration of a previously fixed time; and Section 20 of Act 555 clearly states that any extension of time must be within a period previously allowed.

We hold that these Arkansas decisions when applied to this case and applied to Act 555 impel the conclusion that the Trial Court was without power to grant an extension after the expiration of the previous time; so the order of the Trial Court of November 18, 1954, was made too late and the record was not filed in this Court within the time allowed by law.

II. Should This Court Allow The Record To Be Filed? The appellant insists that even though the Trial Court lacked authority to extend the time, nevertheless this Court should allow the record to be filed because of the language found in Section 2 of Act 555. ⁷

It is not to be doubted that under our inherent constitutional power, this Court could, in a most exceptional case, allow a record to be filed after the time fixed. However, the fact that we have the power does not mean that it should be exercised except in a most extraordinary case. Here, there is no such: the parties let the time expire for filing the record and also let the time expire in which to ask the Trial Court to grant an extension. There was no flood, death, riot, act of God, or other great unavoidable casualty that prevented either the filing of the record within time or timely request to the Trial Court to grant extension. This Court has possessed the same inherent power ever since Statehood; but in a long line of cases we have refused to exercise that inherent power to allow an appellant to present the evidence when it was filed too late. Some such cases are: Chandler v. State, 205 Ark. 74, 167 S.W.2d 142; Johnson v. United States 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 Corporation v. McFarland, 217 Ark. 731, 233 S.W.2d 70. We see no reason for departing, in the case at bar, from the rule established in our adjudications.

It is claimed that Norfleet v. Norfleet, Ark., 268 S.W.2d 387, 389, is authority for us to allow the record to be filed in the case at bar; but we do not so understand the Norfleet case. There, the losing litigant in the Trial Court filed a timely notice of appeal but took no further action and allowed the 90-day period to expire. The prevailing litigant in the Trial Court then filed the record in this Court under the authority of Section 17 of Act 555 of 1953, and here moved for dismissal. We granted the motion because the appellant showed no reason for asking us to exercise our...