Venhaus v. Pulaski County Quorum Court

Per Curiam. Petitioners, Don Venhaus, Pulaski County Judge, and Pulaski County filed this motion seeking clarification of the time schedule they are to follow for lodging the transcript. A claim was rendered against Pulaski County to award that county’s deputy sheriffs overtime pay. Venhaus filed a notice of appeal from that judgment and the trial court entered an order on July 24, 1986, dismissing his appeal on the basis that the quorum court was the only proper party to appeal. In an opinion handed down March 30,1987, this court reversed the trial court’s order and reinstated the appeal. Venhaus v. Pulaski Quorum Court, 291 Ark. 558, 726 S.W.2d 668 (1987). In that opinion, however, we did not address the question of the allowable time for purposes of preparing a transcript. Rule 5 of the Rules of Appellate Procedure provides that the record shall be filed within 90 days from the filing of the first notice of appeal, unless an extension of time is granted. Such an extension is not to exceed seven months from the date of the entry of the judgment. Venhaus asks that his notice of appeal be considered as first filed on March 30, 1987, the date of this court’s opinion reinstating the appeal, giving him a maximum of seven months from that date to file the record. We agree with this approach. Venhaus’s appeal to this court of the trial court’s dismissal of his original appeal is the type of postjudgment motion contemplated by Rules 4 and 5 of the Rules of Appellate Procedure. In Pentron Corp. et al v. Delta Steel & Const. Co., 286 Ark. 91, 689 S.W.2d 539 (1985) this court stated: Rule 4 and Rule 5 are meant to operate successively. That is, a final disposition of the case in the trial court is reached before the notice of appeal must be filed under Rule 4. Rule 5 must then be observed in the preparation of the record and its filing with the clerk of the appellate court. That process should logically date from the notice of appeal, not from the entry of a judgment perhaps some months earlier. Even more importantly, until a motion for a new trial is acted upon, it cannot be known which party will be the appellant, for by Rule 2(a)(3) an order either granting or denying a new trial is appealable. It is manifestly impractical to put the burden of acting within seven months upon a party whose identity may not yet have been determined. Applying this language to the case at bar, when the trial court dismissed the original appeal and Venhaus succeeded in having that appeal reinstated, that was a final disposition of the case in the trial court. The record can now be ordered, with time calculated from the date of the reinstatement, not the entry of the original judgment. To do otherwise would be “manifestly impractical,” since it would place the burden of acting within seven months upon a party whose right to appeal the judgment had not been established. Therefore, Venhaus has 90 days from this court’s decision on March 30, 1987, to file the record on appeal. Motion granted. Purtle, J., dissents.