*1 Company General Box Commissioner v. Scurlock,
Revenues. 2d 271 S. W. delivered
Opinion July 5, 1954. [Rehearing denied 1954.] October Moore, Burrow, & P. Chowning Mitchell and W. Hamilton, Jr., for appellant.
O. T. Ward, appellee. George J. This yet case been has Rose Smith, submitted for decision on the merits. The appellant filed a motion asking be appellee’s cross-appeal reason dismissed, failed to file appellee days a notice of entry thirty the decree below. The contends his cross- but he asks con- properly taken; that, tention overruled, by this court. brought recover income this suit to protest. paid In answer and cross-com- under his
taxes plaint opposed appellee refund for and the claim the By a decree owed. that additional taxes were asserted entered on January dismissed chancellor the 18, 1954, cross-complaint complaint of for want the and the both prays plaintiff equity. and the The decree recites that prays appeal granted and defendant an and that the cross-appeal. notice filed its a appellee February did not file a the 15, on appeal. notice of January 1954, 10, the entered
Since decree was by governed 1953. Court Act 555 of the case is 751, 223 Ark. S. W. v. Norfleet, 26; Rule Norfleet presents appellant’s motion as the 2d 387. Inasmuch concerning important questions of Act construction the by dispose thought motion to of the have it better we by per opinion order. than curiam a governing comprehensive the statute Act 555 ais taking appeals tak the method of cases, time ing appeals, is to be in which the record manner the question prepared, matters. The related and various by repealed what extent Act 555 has is to now before us cross-appeals. relating implication statutes earlier helpful in determin that are two familiar rules There are ‘£ implication repeal by ing occurred. One a whether provisions in irre two statutes where the that, implied re there is an with each other, concilable conflict subject governs peal the so far the later one provisions, conflicting to that extent the relates to by implica- repeal only. that a . . The other one is . Legislature accomplished takes where tion is ground subject of the entire anew covers whole evidently intends subject-matter statute former a may although old in the a substitute, it as provisions Dorado, Elv. in the new.” Babb not embraced 649. 278 S. W. 170 Ark. scope latter plainly falls within legislature By effected a this Act the
rule. appellate procedure governing in civil of the law vision empowered the fact that earlier statutes Hence suits. controlling; trial court procedure now to must look Act 555 alone be followed. slightest doubt that under Act not the
We have filing allowed is a notice within time perfection jurisdictional prerequisite of a cross- to the (Ark. 2 of 27- Stats., 1947, Section provides “any party” ap- 2106.1) to the action thirty days peal by filing from notice of entry (§ 27- or decree. Section 8 the 2127.2) original des-
states that files *3 hardly (which ignation would do unless the record he parties proceed appealing), shall too were the as he appellee appellant. that the the It clear the appellee were seems having the without
would not become (§ 27-2127.10) appeal. filed a notice of Section quires single than one that a record be used when more appeal or decree. No- taken from the same is slightest that in the indication the where the Act appellee appeal manner from in different his take appellant. prescribed In the federal courts, that for the drafting guide in the of Act used rules were as whose cross-appeal proceed must who desires Cyclopedia appellant. Fed- in manner the same as an (3rd Ed.), eral Procedure 60.82. appeal, appellee did not notice of the file a
Here prayed he was the decree recite that and does cross-appeal. do not think that this recital consti- We requirement compliance that with the a substantial tutes appeal theory a notice filed. The of the former actually granted practice the court the was trial that right, appeal, though it á matter of and conse- even was appropriately quently embodied the court’s action was theory legislation as Act in But the its decree. ap- aggrieved litigant the himself takes the that by filing required peal, simply notice with clerk. represents not action that court, of the The decree just inappropriate litigant, for the of the it is give court to notice of it as would be designate specify tribunal to contents record, points upon, to be relied etc. it Indeed, if were not past properly in fact that customarily granted by been the court’s do decree, we suppose any seriously one would contend that contemplates procedure. or authorizes that As construing we have we indicated, Act 555 as a com- plete particular revision field, this and when study we confine our to the Act itself discern no rea- saying sonable basis for that the recital this decree substantially complies mandatory requirement with the that notice of filed with clerk of the trial court. already pretty disposes
What we have said well appellee’s request court his cross- request upon That is bottomed the former stat- authorizing any ute us to allow a at time before the case submitted. Ark. Stats., § 27-2137. It superseded leg- evident that this statute was when the subject compre- islature took and enacted a anew pre- hensive law that intended to abe substitute for existing relating cross-appeals. statutes longer any
aAs of fact, matter there is no need for *4 power delayed grant this court have the a cross- appeal. By practice the former the trial court could grant cross-appeal, both the the and if the lodged ninety days record in were this court within both would heard. But the be if he could, delay filing day the of the record until chose, the last thereby ap- the six permitting then months allowed, the peals granted by lapse. By the trial court to then obtain- ing his in direct court at the this eleventh hour appellant might cross-appeal the have circumvented empowered expira- had we not been it after tion of the six months for the direct allowed Act difficulty, this eliminates as the whole matter nowis simple in concentrated court. trial It is now a mat- litigant substantially completely ter iswho but not satisfied with the to file a notice of aas eventually precautionary opponent measure. If his takes protects cross-appeal; the case to this court notice or trial it abandoned dismissed in the otherwise be any real § court under Act 555. In there 2 of event is grant the for this court to reason, as was before, cross-appeal. cross-appeal decree dis-
The allowed below is prayer granted by this missed ; court is denied. (dissenting). Justice, Associate McFaddin,
Ed. F. alarming. says majority opinion in It is most subject Legislature took the entire 1953the appellate procedure in civil substi- cases, matter existing. provisions previously tuted Act 555 for all such majority opinion two in the Here are statements holding: extent indicate “ By Legislature complete (1) effected this Act appellate procedure governing revision suits.” construing
(2) indicated, have are we “As particular in this 555 as a revision field ...” holding I then the understand it,
If persons savings insane clause minors Stats, provisions and various other abolished, Ark. agree majority opinion: I with the cannot abolished. hence dissent. Federal rules from some of the is taken
That 555 only patchwork of some Act 555 a at most true; give parallel Below I columns: rules. Federal (b) (a) seriatim; of Act 555 numbered section each 972
the number of the Federal rule from which each section was or modeled: copied 1 modification, There are several instances of material but this ready comparative purposes. table serves aas reference for Number of Federal Rule
Section No. from which such section copied or modified.
74 73 (a) (b) 73 (c) 73 (d) 73 (e) 73 (f) 75 (a) (b) 75 (c) 75 (dj 75 (e) 75 (f) 75 (g) 75 (h) 75 (i) 75 (j) 75 (k) 75 (n) 73 (g) table shows that in Act foregoing only Fed- eral rules and 75 were concerned. One dangers some adopting part a law from another *6 is is that selected all too portion frequent- jurisdiction with, portions precede other that and follow ly interwoven these “other are not part, portions” the particular and in Another in a danger accepting our found Statutes. that fre- from some other fact jurisdiction law law, does not fit into our adopted existing quently and the new contains clause. yet express repealing in 555.2 exemplified By Both of are Act that dangers these of four of the Fed- Act the selected Legislature portions there are procedure. eighty-six eral rules on civil Since of these Federal it is to see that rules, very easy selecting regards much to be desired as four out of leaves eighty-six no ex- 555 contains a set rules. Act Again, to tell and it is therefore difficult clause; press repealing are re- Statutes existing of our just previously which in The re- which left force. by are pealed implication and in matter of appellate pro- is to add confusion sult system a understood cedure, fairly whereas had well like desire to “be of Act 555. The adoption before the certainly variance with idea system” the Federal at each State who founding fathers, thought of our individuality. retain its would rule, issued a Act 555 was this Court adopted,
When by might 8, 1953, under date June under the earlier 1953 or taken either under In we then construed Act as words, other Statutes.3 compilation was the Statutes Our earliest of Statutes Revised Pike, great Mason, shortly adopted Albert after Statehood. volume; vividly pointed preface to out most the are wrote evils and existing constantly changing Here and remedies. laws “Change typical preface: and in innovation sentences from Pike’s existing great generally evil, every in Statutes and alteration law should slowly, cautiously, And and with due deliberation.” made incongruous laws, again, preface: Pike said in his “Crude and Albert brains, passed prolific and without considera in haste hatched tion, litigation judges, lawyers books, people, load our Statute confuse create legislation truly rights. and unsettle Too much finally by Hardly settled has the construction one law been curse. Court, often, expense litigants at an of thousands terms, needing ambiguous place, another takes its more before adjudication new it can become a rule of action.” before safe future, expects, rule read: “The Court within the near This revise its Pending with view of harmonization with 555 of 1953. rules action, rule-making power, under Court its inherent litigants (at option)' proceed authorizes the earlier porary their Act 555 or under under by hereby adopted Statutes —which reference tem present rules rules of the Court.” Court —-and method of Those who wanted alternative
being Federal their system” “to be like the could-take ‘‘ in the good, and those who wanted to continue 555; *7 could rule way” Act 555. This of ignore old-fashioned to me most and under it 8,1953, sensible; June seemed no been hurt litigants could have would not have lost one attorney because some failed to understand rights their the full of the law. did I changed Particularly effect favor alternative procedure, express since had had already clause. two statutes repealing regarding We to Court 4 an could be Supreme is, appeal out prayed days ;5 of Trial Court and in 90 prosecuted or prayed an could be out of the appeal Supreme Court within six from months the date took the judgment.6 I view that 555 only was an additional method of ap That peal. prevailed view from June until 8,1953, Janu ary 10, 1954, when a revised of the publication of Buies Supreme Court contained Buie which reads: 26,
“Effective Date Buies. These rules shall become effective on January but this 10,1954, shall not affect any action taken proper before these rules became effective. The court’s order of 8,1953, June by which appeals might be taken either under 555 of 1953 or under the earlier with statutes, rescinded, respect judgments all or de- crees entered January 1954.”
So on judgments all and decrees entered after Janu- ary 10, 1954, litigants who desire to must appeal pursue the course prescribed by Act 555. And what ? course At Imost had that Act thought 555 merely operated to impliedly those sections repeal of the pre-existing with which it was in direct conflict; and that all other sections of the pre-existing were left unaffected. But not so! In present case, the majority says that in Act 555 the Legislature took entire subject matter of appellate procedure in civil cases and substituted Act for every provision previously existing. § This injunction not include does 27-2102 on time for
cases. § See 27-2127 Ark. Stats. See 27-2106 Ark. Stats. holding, let turn to of such us the effect To indicate that are and see some of sections Arkansas Statutes Stats, repealed. of Ark. 27-2101 27-2156 thus Sections “Appeals headings are listed under says, it then all means what If the Court.” inclusive—are to 27-2156, these sections—from repealed by is § these sections 27- Act 555. ofOne said part: says in , of error in case shall
“An or writ a civil except ren- granted, six next after months sought order to be or decree dition party applying infant, an unless the viewed, therefor in which rendition, or mind at the time its unsound to such or writ error cases *8 legal representatives, parties, six months or their ” . death . . their disabilities or removal (Italics own.)7 our any provision in find no Act which contains I savings persons, minors or when clause for insane so majority says place pre- that Act 555 takes the all the appellate procedure then vious law on majority in civil cases, repealed certainly saying § that 27-2106is is. by majority holding, is I Act 555. submit so savings “by obliterating swoop” one fell the law on a all persons, as concerns insane insofar for minors and clause Legisla- appeals I that the cannot believe in civil cases.8 point, of this if intended; and because 1953 so ture of holding present from the I must dissent other, majority. says majority what it means
Furthermore, constituting “complete revision about ’’ procedure appellate governing I suits, then questions: ask these regarding proviso method Act 213 of 1951 added to this section germane point extending transcript. here
of considered. time for It is not Legal This matter was discussed at the Institute held Novem page 1953. 8 Ark. Law See 5. ber. Review.
(a) repealed by If 27-2131 § where Act is there any law left to take care of the situation when pending appeal? dies
(b) repealed, §If 27-2132 is left there where is any dies law take care of the situation where pending appeal ?
(c) any repealed, If 21-2130 § where left bringing original papers?9 law for the (d) subsequent If § sections under heading Digest, “Appeals in the to the Court,” repealed, authority then under what does the Court provided make rules, as in 27-2142? §
Surely majority cannot mean that all these last repealed; yet numbered sections have been where is the line to ? I be drawn submit it would be far better to hold granted by on 27-2137 cross to be this Court repealed by had not been Act than it is to hold—as the doing repealed nowis Act 555 has all the —that previous appellate procedure on in civil cases. complete I maintain that 555 is not a and full ,of appellate procedure vision all our law on in civil cases. I Furthermore, maintain hold that repeal ais of all such to leave the laws, *9 any questions, Bar of Arkansas absolute confusion on wipe savings and is to out all clauses for minors and insane persons in How much cases. better it would majority always be for to now hold that Court can cross-appeal appellee! bar, In the case at Company desig- the record shows the General Box brought nated the record that it wanted All this Court. us to wants do to allow him on Company desig- the record that the General Box has why nated. I cannot see § 27-2137should followed. majority all assigned At I events, submit that the has opinion plague reason for its us; will come back to respectfully I holding. from dissent (o) provision, Federal Rule 75 our has not.