Coggins v. Benton

Court of Appeals of Arkansas

Coggins v. Benton

873 S.W.2d 820, 45 Ark. App. 189, 1994 Ark. App. LEXIS 177

CourtCourt of Appeals of Arkansas

DecidedApril 13, 1994

DocketCA 94-192

StatusPublished

Cited by1 cases

This text of 873 S.W.2d 820 (Coggins v. Benton) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Coggins v. Benton, 873 S.W.2d 820, 45 Ark. App. 189, 1994 Ark. App. LEXIS 177 (Ark. Ct. App. 1994).

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Opinion

Per Curiam.

The appellee has filed a motion to dismiss the above appeal because the transcript was not filed within seven months from the entry of the judgment from which the appeal was taken as required by Rule 5(b) of the Rules of Appellate Procedure. The problem comes from the fact that the transcript was not completed by the court reporter in time to be filed within the seven-month period.

We find the motion to dismiss must be granted. It has been held that in the absence of unavoidable casualty an appeal should be dismissed when the record is filed outside the seven-month period. Pierce v. Pierce, 238 Ark. 46, 377 S.W.2d 868 (1964); see also Thomas v. Arkansas State Plant Board, 254 Ark. 997-A, 497 S.W.2d 9 (1973).

Here, the trial court extended the time for filing the record to a time which was outside the seven-month period, but the court had no authority to take that action. In the case of In Re Estate of Wilkinson, 311 Ark. 311, 843 S.W.2d 316 (1992), the supreme court said, “when an appellant seeks an extension of time beyond the seven months to file his or her record, his or her remedy is to file a partial record in the supreme court and seek an extension for a compelling reason, such as unavoidable casualty.” See also Arkansas Supreme Court and Court of Appeals Rule 3-5, which was formerly Rule 26, and the case of Evans v. Northwest Tire Service, 21 Ark. App. 75, 728 S.W.2d 523 (1987).

Cooper, J., not participating.

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Per Curiam.

The appellee has filed a motion to dismiss the above appeal because the transcript was not filed within seven months from the entry of the judgment from which the appeal was taken as required by Rule 5(b) of the Rules of Appellate Procedure. The problem comes from the fact that the transcript was not completed by the court reporter in time to be filed within the seven-month period.

We find the motion to dismiss must be granted. It has been held that in the absence of unavoidable casualty an appeal should be dismissed when the record is filed outside the seven-month period. Pierce v. Pierce, 238 Ark. 46, 377 S.W.2d 868 (1964); see also Thomas v. Arkansas State Plant Board, 254 Ark. 997-A, 497 S.W.2d 9 (1973).

Here, the trial court extended the time for filing the record to a time which was outside the seven-month period, but the court had no authority to take that action. In the case of In Re Estate of Wilkinson, 311 Ark. 311, 843 S.W.2d 316 (1992), the supreme court said, “when an appellant seeks an extension of time beyond the seven months to file his or her record, his or her remedy is to file a partial record in the supreme court and seek an extension for a compelling reason, such as unavoidable casualty.” See also Arkansas Supreme Court and Court of Appeals Rule 3-5, which was formerly Rule 26, and the case of Evans v. Northwest Tire Service, 21 Ark. App. 75, 728 S.W.2d 523 (1987).

Cooper, J., not participating.

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873 S.W.2d 820, 45 Ark. App. 189, 1994 Ark. App. LEXIS 177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coggins-v-benton-arkctapp-1994.

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