Commercial Credit Corp. v. Tarver

George Rose Smith, J.

This is a suit brought by the appellee for the cancellation of a conditional sales contract, upon the ground of usury. The chancellor held that the contract was usurious on its face and accordingly granted the relief prayed. In this court the appellee has filed a motion asking that the appeal be dismissed for the appellant’s failure to file a timely notice of appeal.

The ease was tried on September 21, 1951. At the end of the trial the chancellor immediately announced his decision in an oral opinion. In closing his remarks the chancellor said: “Let this precedent show, at the wind-up, that the defendant excepts to the judgment, order and ruling and decree of the court and prays an appeal to the Supreme Court, which is granted. Whether that will get you there or not, I don’t know.” It is stipulated that counsel for the appellant then “orally notified the court and the appellee, Billy D. Tarver, and his attorney, that this cause would be promptly appealed to the Supreme Court.” Counsel also requested and were granted a period of 180 days in which to file the record.

On September 28 the appellee’s attorney mailed to opposing counsel a precedent for the decree. The latter attorneys rewrote the precedent and returned it on October 6, with a statement that the appeal would be prosecuted as expeditiously as possible. Apparently the precedent, which was dated September 21, was signed and entered promptly after its receipt by counsel for the appellee.

The absence of a notice of appeal was brought to the attention of the appellant’s attorneys on November 15, when the clerk of the trial court wrote that “since you did not file Notice of Appeal, we have not worked on this record.” At the clerk’s request a notice of appeal was then filed, on November 17, but it is not contended that this filing was within thirty days after the entry of the decree. Instead, the argument is that the other matters which we have mentioned constituted a substantial compliance with the statute.

In principle this case is controlled by the opinion delivered July 5, 1954, in General Box Co. v. Scurlock, 223 Ark. 967, 271 S. W. 2d 40. There the decree recited that a cross-appeal was prayed and granted, and it was contended that this recital satisfied the requirement that a notice of appeal be filed. We rejected that contention, holding that no sufficient notice of appeal had been given.

The only perceptible difference between that case and this one is that here the appellant, at the conclusion of the trial, orally announced that an appeal would be taken. It is quite apparent, however, that the legislature did not intend to subject this vital jurisdictional matter to the uncertainties of oral proof. The appeal is taken by “filing” with the court in which the case is tried a notice of appeal. Ark. Stats., 1947, § 27-2106.1. The clerk is required to mail “copies” of the notice to the other parties in the case. Section 27-2106.2. These provisions of the statute plainly contemplate the existence of a written instrument, and there is no language suggesting that the notice may be given orally. Although the federal courts have been liberal in construing the federal rules, after which our statute was patterned, we are aware of no decision expressing the view that a parol notice of appeal is sufficient.

Appeal dismissed.

Justice McFaddin concurs. Justices Holt and Ward dissent.