Mahan v. Estate of Mahan

Per Curiam.

Inez Mahan has moved for a rule on the clerk to accept a record which was tendered late.

The order appealed from was entered on July 26,1983 in the Probate Court of Van Burén County. Notice of appeal was filed on August 16 and one timely extnsion of 120 days was obtained. Thus the record was due not later than 210 days from the judgment, or February 21, 1984. The record was tendered here on March 13, 1984 and was properly refused by the clerk.

The motion for a rule on the clerk mentions the flood which occurred in Clinton, Arkansas, in 1982 but makes no serious attempt to lay the cause for the late tender to that catastrophe. The motion states candidly that the delay occurred because “counsel for the appellant, court reporter, and the clerk of the court did all count the seven month period for filing the transcript mentioned in Ark. Stat. Ann. § 27-2127.1 from the date of filing the notice of appeal herein and not as would be proper from the date of the judgment appealed from, which would be July 26, 1983.” Thus, the late tender of the record in this case must be attributed to the miscalculation and not to an unavoidable casualty. We have repeatedly said the timely tender of the record is essential. The motion, therefore, is denied.

Purtle and Hollingsworth, JJ., dissent.