author: Richard B. Adkisson, Chief Justice.

text:
    WESTERN PAPER CO. v. Robert L. QUALLS, Director, Arkansas Department of Finance & Administration
    81-5
    615 S.W. 2d 369
    Supreme Court of Arkansas
    Opinion delivered May 18, 1981

      Rose Law Firm, by: W. Dane Clay, for appellant.

      James R. Eads, Jr., Joseph V. Svoboda, H. Thomas Clark, Jr., Timothy J. Leathers, Jr., Cassandra Wilkins-Slater, Robert J. DeGostin, Jr., Kelly S. Jennings, and Wayne Zakrzewski, for appellee.
   Richard B. Adkisson, Chief Justice.

Appellant, Western Paper Co., appeals from a decree of the Pulaski County Chancery Court denying its claimed exemption from gross receipts (sales) tax on its sales to commercial printers. Under Ark. Stat. Ann. § 84-1904 (r)(2) the sale of machinery or equipment used directly in manufacturing is exempt from taxation.

The sole question presented on this appeal is whether the commercial printers to whom appellant sells machinery are “manufacturers” within the meaning of Ark. Stat. Ann. § 84-1904 (r)(2). As stated in S. H. & J. Drilling Corp. v. Qualls, 268 Ark. 71 (1980), the party claiming the exemption has the burden of proving it beyond a reasonable doubt; also, any exemption provision must be strictly construed against the exemption, and to doubt is to deny the exemption. Arkansas Beverage Co. v. Heath, 257 Ark. 991, 521 S.W. 2d 835 (1975). Exemption cases are reviewed de novo, but the chancellor’s fact findings will not be reversed unless clearly against the preponderance of the evidence. S. H. & J. Drilling Corp., supra. It appears that manufacturing operations have been categorized as such on a case-by-case analysis of the operations themselves, and that Arkansas has never been asked to determine whether a commercial printer is a “manufacturer” under § 84-1904 (r)(2).

The sole testimony presented to the trial court concerning the nature of commercial printing was that of appellant’s manager, Mr. Gerald Berry, who testified that he was well acquainted with the operations of appellant’s customers, having been in the majority of printing plants himself and knowing the exact function of the equipment they used regardless of what plant was using the equipment. He testified that appellant sells to graphic arts manufacturers and that the equipment sold is used in manufacturing finished products such as stationery, wedding and business announcements, flyers, books, and business cards. Mr. Berry testified as to the various steps of manufacturing and as to some of the equipment used by commercial printers: the copy preparation stage, including typesetting, photography, and production of plates; the press stage, which may include the use of presses of various sizes with both single and multi-color capability; the binding stage, which includes the use of paper cutters, drills, stitchers, gluing machines, and folding equipment; and, the packaging stage, which requires the use of other kinds of machinery.

Mr. Berry further testified:

In offset lithography, you use a film [and] anywhere from five to twelve mill aluminum plate that’s presensitized, it’s an aluminum pre-sensitized plate. The images, the negative, is placed over the plate and exposed through various kinds of light sources and then developed and only the image comes up. It goes on the press. It’s called the offset. The plate is inked and the image is transferred from the plate to a rubber blanket therein, called the offset. This is all in one continuous motion and then the image is transferred to the paper. The actual printing is from a blanket and it is called offset lithography. So it’s a much, much faster process and very versatile in color and high speed.

Mr. Berry testified that commercial printers use various raw materials to make the final printed product:

photographic paper, which is normally in rolls in a cylinder and you would use film which, in most cases, is sheet film, big-sized film that’s loaded into the camera. You would use a developer and fix and ... the chemistry we would use in developing the negative, and the next piece of material would be a pre-sensitized plate, a metal plate, that this image is transferred to. Then it goes to the press and you use several kinds of press chemistry, water and some small amount of chemistry on the press itself to have a proper balance, and of course, paper, the paper it’s printed on. Now, if you want to bind the book you would have a different kind of paper for cover, you would have staples or stitching wire to stitch it together and, to package it, the wrapping paper.

The term manufacturing refers to and includes those operations commonly understood and recognized as such within its ordinary meaning. Ark. Stat. Ann. § 84-1904 (r)(2)(E) (Repl. 1980). In the ordinary use of the term we do not think of printing, photography, and binding as manufacturing. Patterson v. New Orleans, 47 La. Ann. 275, 16 So. 815 (1895), dealt with a printer of bill heads, order forms, ledgers and commercial books who cut and folded the materials to desired sizes and shapes; the Louisiana Supreme Court found that the printer was not a manufacturer. In referring to the term “manufacturer” as used in its ordinary sense the Court stated:

Its natural import is to produce an article, and in its common application refers to changing of raw material into some new and useful form ... Stationery embraces ink, pens, writing paper and envelopes, and similar articles used in an office. Those who produce these articles are manufacturers ... But we cannot extend that exemption to those who merely print on the paper bill headings or similar forms that otherwise would be written by the pen.

Commercial printing has certainly undergone technological changes over the years, but the final product remains the same — images on paper. The printer starts with manufactured paper and ink and through the use of manufactured machinery and equipment produces images on paper, a product which generally has no commercial market value other than to the individual for whom the commercial printer performed the service. “Ordinarily, we think of a manufactured article as something to be placed on the market for retail to the general public in the usual course of business.” Morley v. E. E. Barber Construction Co., 220 Ark. 485, 248 S.W. 2d 689 (1952).

The party claiming the exemption has the burden of proving it beyond a reasonable doubt. The chancellor was not convinced, neither are we. In any event we are unable to say that the ruling of the trial court was clearly against the preponderance of the evidence.

Affirmed.


source: Caselaw Access Project

author: Frank Holt, Justice. Richard B. Adkisson, Chief Justice,

license: Public Domain

text:
    STATE of Arkansas v. Gene GARRISON
    CR 80-248
    615 S.W. 2d 371
    Supreme Court of Arkansas
    Opinion delivered May 18, 1981

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., for appellant.

      Macom, Moorhead, Green & Henry, by: J. W. Green, Jr., for appellee.
   Frank Holt, Justice.

Appellee, sheriff of Arkansas County, was charged by information directly in circuit court with permitting escape in the first degree. Ark. Stat. Ann. § 41-2813 (Repl. 1977). The information alleged that the appellee allowed Arthur James Wilson, Jr., to escape while in his supervision and custody. Pending trial, the circuit court granted appellee’s motion for a preliminary hearing to determine if probable cause existed to justify the charge. The evidence at the hearing showed that Wilson had been causing numerous problems by his aberrant and unhygienic behavior while in custody at the county jail. The appellee sheriff checked Wilson out of the jail one night at 8 p.m. and drove him to Little Rock. The evidence is in conflict as to whether the appellee told Wilson to get out of the car upon reaching Little Rock or whether Wilson escaped from the car. Wilson was taken into custody later that evening by a local policeman. Following the probable cause hearing, the court dismissed the charges. The state appeals from this determination, raising the propriety of the hearing itself as well as several evidentiary questions.

The state first argues that the appellee was not entitled to a judicial review of the prosecutor’s filing an information charging him with the alleged offense. We agree. A preliminary examination to determine if probable cause exists for an accusation did not exist at common law. 21 Am. Jur. 2d Criminal Law § 442 (1962). In Gerstein v. Pugh, 420 U.S. 103 (1975), the court reiterated its prior holding that a judicial hearing is not prerequisite to prosecution by information, holding, however, that such a judicial determination of probable cause is required for extended restraint of liberty following an arrest. The latter is not involved here. Cf. Renton v. State, 265 Ark. 223, 577 S.W. 2d 594 (1979). There is no constitutional provision for such a hearing, as here, nor is one constitutionally required. Constitution of Arkansas (1874), Amendment 21. Payne v. State, 226 Ark. 910, 295 S.W. 2d 312 (1956). See also Lem Woon v. Oregon, 229 U.S. 586 (1975); Beck v. Washington, 369 U.S. 541 (1962); Wharton’s Criminal Procedure, § 144 (12th Ed. 1974).

Neither is there statutory authority for such a hearing. Any reliance by appellee on Rule 8.3 (c) of the Arkansas Rules of Criminal Procedure and Ark. Stat. Ann. § 43-618 (Repl. 1977) is misplaced. Both of these apply, by their terms, to situations in which the accused is in custody and the preliminary review is to determine if sufficient probable cause exists to further detain the accused. That is not the situation here as the appellee was not incarcerated. Charges against him had already been filed directly in circuit court, and there was a pretrial release based upon his own recognizance.

In the circumstances, we hold that the court erred in conducting a preliminary hearing and dismissing the information for want of probable cause.

Neither do we find merit in the appellee’s contention that the state failed to object to the proceeding and, therefore, is precluded from raising the issue on appeal. A question as to jurisdiction may be raised for the first time on appeal. Haskins v. State, 264 Ark. 454, 572 S.W. 2d 411 (1978). Here, the court was without authority and therefore jurisdiction to conduct this proceeding.

We deem it unnecessary to discuss other contentions raised by the appellant.

Reversed and remanded.

Adkisson, C.J., and Purtle, J., dissent.

Richard B. Adkisson, Chief Justice,

dissenting. In Arkansas County the prosecuting attorney has charged the sheriff, by information filed in circuit court, with the crime of permitting escape in the first degree, a class C felony. On motion of the defendant a hearing was held in circuit court for a judicial determination of the existence of probable cause for the charge.

First, I dissent from the majority holding that Rule 8.3, Ark. Rules Crim. Proc., Ark. Stat. Ann., Vol. 4A (Repl. 1977) applies only to the issue of pretrial release where the accused is in custody. A cursory reading of this rule clearly indicates its application goes beyond inquiries regarding pretrial release. Rule 8.3 provides:

Nature of First Appearance.
(a) Upon the first appearance of the defendant the judicial officer shall inform him of the charge. The judicial officer shall also inform the defendant that:
(i) he is not required to say anything, and that anything he says can be used against him;
(ii) he has a right to counsel; and
(iii) he has a right to communicate with his counsel, his family, or his friends, and that reasonable means will be provided for him to do so.
(b) No further steps in the proceedings other than pretrial release inquiry may be taken until the defendant and his counsel have had an adequate opportunity to confer, unless the defendant has intelligently waived his right to counsel or has refused the assistance of counsel.
(c) The judicial officer, if unable to dispose of the case at the first appearance, shall proceed to decide the question of the pretrial release of the defendant. In so doing, the judicial officer shall first determine by an informal, non-adversary hearing whether there is probable cause for detaining the arrested person pending further proceedings. The standard for determining probable cause at such hearing shall be the same as that which governs arrests with or without a warrant. (Emphasis mine)

This rule clearly contemplates that something other than a pretrial release inquiry will occur upon the first appearance of a defendant before a judicial officer. The rule states as much in each of its sections a, b, and c. This rule allows for a judicial officer “to dispose of the case at the first appearance,” that is, to make a probable cause determination before defendant is put to the expense and trauma of a full-blown trial. Rule 8.3(c).

The record reflects that this was the first appearance of this defendant before a judicial officer. This rule along with Ark. Stat. Ann. § 43-601 et seq. (Repl. 1977) clearly contemplates that the charges against a defendant may be reviewed by a judicial officer prior to trial. Ark. Const. Art. 7, § 14 provides that the circuit court shall have superintending control over all inferior courts. Certainly the circuit court has ample authority to conduct a probable cause hearing, at least, where none has been conducted before an inferior court.

Our courts are crowded and are becoming more so. Part of the reason is reflected by the majority view that Arkansas County must expend funds and utilize its facilities to hold a jury trial in this case where an inmate of the Arkansas County Jail has “escaped to and remains in the Arkansas State Hospital” and the sheriffs innocence is confirmed by a polygraph examination conducted by the Arkansas State Police. The circuit court did not abuse its discretion but exercised it soundly.

Second, the majority is incorrect in holding that the trial court had no jurisdiction to conduct a probable cause hearing. The correct method of ascertaining what jurisdiction circuit courts have in civil and criminal cases is to ask whether exclusive jurisdiction of the particular case is vested in another tribunal by the Arkansas Constitution. Adams v. State, 153 Ark. 202, 240 S.W. 5 (1922). Daley v. Digby, Judge, 272 Ark. 267 (1981).

Arkansas Const. Art. 7, § 40 confers original, but not exclusive, jurisdiction on justice of the peace courts “to sit as examining courts and commit, discharge, or recognize offenders. ...” Rule 8 places the responsibility for determining probable cause in the judicial officer before whom a defendant first appears. In this case that judicial officer was the circuit judge of Arkansas County.

I am hereby authorized to state that Purtle, J., joins me in this dissent.


author: Darrell Hickman, Justice. George Rose Smith, Justice,

text:
    Kathryn Keith TUCKER v. Alice Meredith Tucker STACY et al
    80-298
    616 S.W. 2d 473
    Supreme Court of Arkansas
    Opinion delivered May 18, 1981
    [Rehearing denied June 22, 1981.]

      J. R. Nash, for appellant.

      David Solomon, for appellees.
   Darrell Hickman, Justice.

This is an appeal from the chancellor’s finding that the appellees had proved that Alice Moore Tucker’s will was lost or destroyed by accident. After so finding, the chancellor ordered the will admitted to probate since the parties had agreed to consolidate the probate and chancery proceedings.

The appellant, a granddaughter of Alice Moore Tucker, alleges that three of the chancellor’s findings were wrong. She challenges the findings that the testator had the mental capacity and was unduly influenced, the execution and contents of the will were properly proved, and the presumption of revocation was overcome by the evidence. We affirm the chancellor’s findings.

A photocopy of Mrs. Tucker’s will was produced as evidence of the missing original. The original was drafted in longhand by a Mississippi lawyer and provided that most of Mrs. Tucker’s property would go to three of her grandchildren in equal shares. Those beneficiaries are the three appellees, the children of one of Mrs. Tucker’s two sons. The appellant is an adopted daughter of Mrs. Tucker’s other son. She was to receive only $250.00 under the will. The lawyer who wrote the will was the father-in-law of one of the appellees. He was visiting in Hughes, Arkansas, and it was suggested to him that Mrs. Tucker wanted to see him regarding a will. He went to her home and, according to his testimony, Mrs. Tucker said that she wanted a will drawn with everything to be left to her three grandchildren, the appellees. He drafted this will in longhand and it was witnessed by a Mrs. Moore who at the time was living with Mrs. Tucker and a friend, E. J. Chaffin, Jr. According to the lawyer, no one influenced Mrs. Tucker or suggested to her that the will should be so drafted; it was Mrs. Tucker’s decision. He said that after he drew the will Mrs. Tucker mentioned that her deceased son had an adopted daughter in Florida. They discussed the need to include the appellant and the lawyer came back the next day and redrafted the will, leaving the appellant $250.00. The other provisions were left the same. The same two witnesses were called in the next morning, August 6, 1974, and witnessed this document. The copy submitted was of this revised will. Both attesting witnesses testified at the trial and said unequivocally that the document contained their signatures, although they could not testify as to the contents of the will. The lawyer testified as to the contents and said he caused the copy to be made and that he had kept it. Several other witnesses testified that Mrs. Tucker had said she left her property to the three appellees.

About seventeen months after Mrs. Tucker signed the will she was declared incompetent and a guardian was appointed. At that time she was about eighty-six years old; she was eighty-nine when she died. There was a sharp conflict in the testimony as to the relationship that existed between the appellant and her grandmother. It is not disputed that the appellant went with her mother to Florida when her parents were divorced; she was twelve at the time. Her father remained with Mrs. Tucker in Hughes, Arkansas. The appellant admitted she had not visited her grandmother since she was eleven or twelve years old. Several witnesses testified that to their knowledge the grandmother and the appellant were not close and that when Mrs. Tucker referred to her grandchildren she specifically mentioned Meredith, Dee, and Tom, the appellees. The appellant and her mother testified that they regularly talked to Mrs. Tucker on the telephone and that Mrs. Tucker considered the appellant a granddaughter just like the other grandchildren.

The appellant challenged the will on several grounds and questioned the handling of her father’s estate and the guardianship of Mrs. Tucker. These proceedings were tried together. However, on appeal only three issues are raised.

The first issue concerns the proof regarding the lost or destroyed will. The suit was originally filed by the appellees in chancery court to prove that the photocopy was in fact a copy of a lost or destroyed will and should be considered the valid last will and testament of Mrs. Tucker. The controlling Arkansas statute is Ark. Stat. Ann. § 60-304 (Repl. 1971) which provides:

No will of any testator shall be allowed to be proved as a lost or destroyed will, unless the same shall be proved to have been in existence at the time of the death of the testator, or be shown to have been fraudulently destroyed in the lifetime of the testator; nor unless its provisions be clearly and distinctly proved by at least two [2] witnesses, a correct copy or draft being deemed equivalent to one [ 1 ] witness.

The appellant’s argument regarding the proof is that a photocopy is not necessarily a correct copy and that the two witnesses did not verify the contents of the will. The appellant suggests fraud and points out that it is possible by photocopying to transpose a witness’s signature. The copy was introduced and both attesting witnesses said that it was their signature on the document. There is no evidence that transposition of the signatures occurred in this case. The attorney testified that he kept the copy in his possession. Both the attesting witnesses and the attorney testified as to how, when, and where the will was signed and their testimony is not in conflict. The trial court found that there was clear and convincing evidence that the will was in fact executed and that its provisions were proved according to the law. This meets the burden of proof for a lost or destroyed will. Bradway v. Thompson, 139 Ark. 542, 214 S.W. 27 (1919). We cannot say that the chancellor’s finding was clearly wrong. Rules of Civil Procedure, Rule 52.

The second argument is that the appellees had to prove beyond a reasonable doubt that Mrs. Tucker had the mental capacity to make the will and that there was a lack of undue influence. This precise point was not raised at the trial level. The burden of proof is different where a benficiary draws a will. We have held that when a will is drafted or caused to be drafted by a substantial beneficiary then it must be proved beyond a reasonable doubt that the testator had the capacity to make the will and that there was no undue influence. Greenwood v. Wilson, 267 Ark. 68, 588 S.W. 2d 701 (1979). At the trial level the appellant simply argued a lack of mental capacity and undue influence. That allegation must be proved by a preponderance of the evidence by the one making that claim. The chancellor found that the appellant failed in that burden. In order to set aside that finding we would have to say the chancellor was clearly erroneous. Rules of Civil Procedure, Rule 52. The issues involved a determination of the credibility of the witnesses, which is a matter within the exclusive province of the chancellor. Orsby v. McGee, 271 Ark. 268 (1980). Evidently the chancellor was satisfied that neither the lawyer nor any of the relatives who might benefit from the will unduly influenced Mrs. Tucker. Seventeen months after the will was drafted Mrs. Tucker was declared legally incompetent but there is no evidence that she was legally incompetent at the time that she made the will. Yarbrough v. Moses, 223 Ark. 489, 267 S.W. 2d 289 (1954).

The final argument is that the presumption that a lost will has been revoked was not overcome by the evidence. After listening to all of the testimony, the chancellor was of the opinion that the will had either been lost or accidentally destroyed. He specifically found three things which supported that judgment. First, he found that all of those witnesses most familiar with Mrs. Tucker testified that during the period following the making of the will Mrs. Tucker became more and more forgetful and less able to care for herself and her affairs. She developed a habit of tucking things away and forgetting where she had put them. Papers were found all over the house after she died. Second, some seventeen months after the will was executed, Mrs. Tucker’s mental processes had so deteriorated that she was adjudged incompetent and a guardian was appointed to take care of her person and estate. She died in that status. Her condition weakened the presumption of intentional destruction. Finally, during the last six months of her life, she was confined to a nursing home where she was separated from her residence and personal belongings. There was no evidence that she returned to her home or had custody of its contents. The chancellor cited Markofske v. Cotter, 47 Wis. 2d 769, 178 N.W. 2d 9 (1970) for authority that when one is confined to a home without any control over one’s papers this is a fact to be considered in overcoming the presumption of revocation.

On this record we cannot say that the chancellor was wrong in his findings. Consequently, the decree is affirmed.

Affirmed.

George Rose Smith, J., concurs.

Holt, J., not participating.

George Rose Smith, Justice,

concurring. It may not be amiss to point out, for the information of the bar, that our jurisdiction of this case does not rest on Rule 29(1) (p), as the appellant asserts. Construction of the will is not involved. Rather, our jurisdiction is derived from Rule 29 (1) (c), encompassing the construction of statutes. The appellant argues that a Xerox copy of a will is not a “copy” within Ark. Stat. Ann. § 60-304 (Repl. 1971); so we are called upon to construe that statute.


author: John I. Purtle, Justice. Darrell Hickman, Justice,

text:
    John F. WELLS et al v. ARKANSAS PUBLIC SERVICE COMMISSION et al
    81-2
    616 S.W. 2d 718
    Supreme Court of Arkansas
    Opinion delivered May 18, 1981
    [Rehearing denied June 22, 1981.]

      James F. Lane, for appellant.

      Steve Clark, Atty. Gen., by: Rodney E. Slater, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellants, John F. Wells and Independent Voters of Arkansas, filed suit in the Second Division Pulaski County Chancery Court seeking to enjoin the state-wide reassessment order of the Second Division Pulaski County Circuit Court which was affirmed by this court in an action entitled Arkansas Public Service Commission v. Pulaski County Board of Equalization, 266 Ark. 64, 582 S.W. 2d 942 (1979). Appellants sought to enjoin the appellees from performing any duties relating to the circuit court ordered reassessment plan and to enjoin expenditures of any money by any person pursuant to Acts of the General Assembly 1980, No. 1. The chancellor found all allegations of the complaint, except one, were included in the circuit court case and the doctrine of res judicata applied. The one issue not included in the former case was moot at the time and has not been argued on appeal.

Appellants argue three issues for reversal: (1) the trial court erred in finding the issues presented in the complaint were included in the prior trial and therefore subject to the doctrine of res judicata; (2) the Pulaski County Circuit Court had no jurisdiction to order state-wide reappraisal; and (3) the trial court erred in applying the Constitution of Arkansas, Art. 16 § 5, because it had been superseded by Amendment 47 to the Constitution. We do not agree with any of the three arguments.

Appellants have no quarrel with the part of the prior reassessment case in which the word “value” was determined to mean the current market value. However, they argue the circuit court reached beyond its jurisdiction in approving the 5-year schedule of compliances. In short, the real issue to be determined by this court is whether the 5-year compliance schedule attached to the circuit court order was properly decided by this court in Arkansas Public Service Commission v. Pulaski County Board of Equalization, supra. If so, then this case is at an end. If not, the case will have to be remanded for further action at the trial level. We do not discuss the jurisdiction of the chancery court because it has not been questioned nor argued.

We first consider the question of res judicata and when it is applied. Generally speaking, it applies when there has been a final adjudication on the merits of an issue, without fraud or collusion, by a court of competent jurisdiction, on the matters litigated or which might have been litigated. Robertson v. Evans, 180 Ark. 420, 21 S.W. 2d 619 (1929); Hastings v. Rose Courts, 237 Ark. 426, 373 S.W. 2d 583 (1963), cert. denied 377 U.S. 964 (1964). It is res judicata even though not adjudicated if the matters were necessarily within the issues and might have been litigated in the former suit. Gosnell Special School District No. 6 v. Baggett, 172 Ark. 681, 290 S.W. 577 (1927); Timmons v. Brannan, 225 Ark. 220, 280 S.W. 2d 393 (1955); and Hastings v. Rose Courts, supra. The exact same parties are not required as it is sufficient if there is substantial identity of the parties. Rose v. Jacobs, 231 Ark. 286, 329 S.W. 2d 170 (1959). In Hastings v. Rose Courts, supra, we quoted 50 C.J.S. 293, “Judgments” § 763:

... It has also been held that the true reason for holding an issue res judicata is not necessarily the identity or privity of the parties, but the policy of the law to end litigation by preventing a party who has had one fair trial of a question of fact from again drawing it into controversy, and that a plaintiff who deliberately selects his forum is bound by an adverse judgment therein in a second suit involving the same issues, even though defendant in the second suit was not a party, nor in privity with a party, in the first suit.

Appellants do not argue that fraud or collusion was used to procure the circuit court judgment nor that the case was not bona fide and in good faith; these being the only exceptions to a bar in res judicata or second trial. The only other avenue to avoid the doctrine is that of lack of jurisdiction in the trial court and this court. This is what the appellants have tried to do in this case. However, the record of the circuit court case is a part of the record in this case and is listed as an exhibit. We find that the subject of the 5-year plan was proposed in the circuit court trial and that most of the parties approved the schedule. In any case the trial court made it a part of its final judgment and it was argued rather forcefully on appeal. This court, by a majority opinion, held the 5-year plan was a proper procedure and affirmed the action of the trial court. No appeal to the United States Supreme Court was taken. Therefore, we reaffirm our prior action by agreeing that the doctrine of res judicata was properly applied by the chancellor in the trial below.

The circuit court order was not an encroachment upon the legislative branch of the government. It was simply a court order which set a deadline beyond which it would not tolerate the PSC’s failure to equalize property taxes in Arkansas as mandated by the constitution. Appellants’ efforts to smuggle in a second appeal on the same case will not be allowed. One fair trial on the merits of the case is all appellants are entitled to.

Affirmed.

Hickman, J., concurs.

Holt, J., not participating.

Darrell Hickman, Justice,

concurring. I agree with the decision reached but want to emphasize two things. First, I still believe the majority was wrong in ordering reappraisal to take place over five years. Reappraisal implementation was no doubt a decision for the other branches of government. I still feel that this court’s role was limited to deciding whether the constitution was being followed. Arkansas Public Service Commission v. Pulaski County Board of Equalization, 266 Ark. 64, 582 S.W. 2d 942 (1979). But that is water long over the dam. The appellant attempts to reopen this case almost three years later. Right or wrong, reappraisal has been ordered and it ought to proceed.

Actually, the General Assembly decided to have the reappraisal done in three years (Act 69 of 1980 [Extraordinary Session]) after our decision. This caused yet another lawsuit since that “plan” conflicted with the majority’s five-year “plan.” I point this out merely to remind the majority that when it meddles in the business of other branches of government, the process of government is disrupted, not aided.

Aside from all this, the appellant has made one point that I feel should be emphasized for posterity. This court should not be bound in taxpayers’ lawsuits and test cases to the often self serving actions of litigants or lawyers. I think that is what happened originally in this case. Some of the parties, none of whom represented the parties who would suffer prejudice, agreed that it would be well if fifteen counties reappraised their property each year for five years. The majority blindly accepted that agreement, totally ignoring the rights of those unrepresented. It did not have to do so. In two cases we have made it plain that counsel in such test cases or cases affecting large segments of the public cannot through ignorance or design limit this court’s authority. Pafford v. Hall, 217 Ark. 734, 233 S.W. 2d 72 (1950); Parker v. Laws, 249 Ark. 632, 460 S.W. 2d 337 (1970).


author: John I. Purtle, Justice.

text:
    Jay GIPSON d/b/a JAY GIPSON CRANE RENTAL SERVICE v. TYSON FOODS, INC.
    81-34
    615 S.W. 2d 363
    Supreme Court of Arkansas
    Opinion delivered May 18, 1981

      Pryor, Robinson, Taylor & Barry, by: Gregory T. Karber, for appellant.

      Blair, Cypert, Waters & Roy, by: Michael H. Mashbum, for appellee.
   John I. Purtle, Justice.

The trial court dismissed appellant’s complaint in which he sought to enforce a laborers lien and foreclosure action against the ownerappellee. The court dismissed the action because the appellant had not timely joined the contractor as a party to the suit and had not provided the appellee with the notice required by Ark. Stat. Ann. § 51-608.1 (Supp. 1979).

For his appeal the appellant urges that (1) the contractor was not a necessary party under the circumstances; and (2) no prior notice was required to be given by the appellant.

The appellant furnished labor on the construction project at the request of the contractor who was engaged by appellee. The last labor was furnished on December 5, 1979-Suit was filed against the owner-appellee on April 3, 1980.

The contractor filed Chapter 12 bankruptcy proceedings in Topeka, Kansas, March 11, 1980. The appellant received notice from the bankruptcy court enjoining him from proceeding against the contractor prior to the timely filing of the foreclosure action. Although the contractor was not named as a party defendant by the appellant, he did file notice of lis pendens at the time the complaint was filed.

After the issues were joined both parties moved for a summary judgment. The chancellor ruled that appellant’s claim for lien against land owned by the appellee failed because of the failure of appellant to join the contractor as a necessary party and because the appellee had not been given the required notice. The appeal from this decision was timely filed.

We first consider whether the contractor was a necessary party in this case. There is no disagreement between the parties that the settled law in Arkansas is that a contractor must be joined in an action to foreclose a lien, and it must be filed within 120 days from furnishing the labor, supplies or material. The question then becomes: should the present facts constitute an exception to the general rule? In Christy v.Nabholz Supply Co., 261 Ark. 127, 546 S.W. 2d 425 (1977), we held that a laborers lien must be filed within the statutory time and the fact that the contractor was bankrupt was irrelevant to the application of the lien law. However, there was no indication in Christy that the creditors had been enjoined by the bankruptcy court as was the appellant in the present case. We also dealt with a bankrupt contractor in the case of Rasmussen v. Reed, 255 Ark. 1064, 505 S.W. 2d 222 (1974). There we disallowed the claim because the subcontractors had failed to name the general contractor in the foreclosure suit. In the trial in Rasmussen the parties stipulated that the contractor was in bankruptcy proceedings. There was no evidence that the creditors had been enjoined by the bankruptcy court. We stated in Rasmussen:

... Unless appellees were listed as creditors in the bankruptcy proceeding, they cannot utilize the tolling provision, 11 U.S.C. § 29 (f), supra. The stipulation and the record, including the appellees’ pleadings, are void of any proof that appellees themselves were listed creditors. ...

The very purpose of the lien statute is to allow an action against the owner when the contractor fails to pay the suppliers of labor and materials. The owner in this case would have been just as liable if the contractor had been named because the contractor is bankrupt. Therefore, it would be a futile and idle gesture to require the appellant to name the contractor and then allow the contractor to shift the responsibility to the owner because the contractor was bankrupt. We hold that when a potential lien holder is enjoined by a bankruptcy court from proceeding against a contractor, it is unnecessary to make the contractor a party defendant in a lien foreclosure action.

Next the appellant argues that Act 746 of 1979, amending Ark. Stat. Ann. § 51-601 et seq. (Repl. 1971) does not apply to one furnishing labor. The act itself states in part:

Section 2. It shall be the duty of the principal contractor to give the owner or his authorized agent the notice set out in Section 3 of this Act on behalf of all potential lien claimants under his contract prior to the supplying of any materials, fixtures, engines, boilers or machinery. Any potential lien claimant may also give notice, provided however, that no lien may be acquired for any material, fixture, engine, boiler or machinery furnished prior to the receipt of notice by the owner or his authorized agent.

Section 2 is in compliance with the title of the act and with the other provisions therein. Section 5 of Act 746 states that if the contractor supplies the performance bond or the transaction is direct with the property owner, that the notice provisions shall not apply. Act 746 repeatedly mentions materials, fixture, engine, boiler, or machinery. However, at no place does it state that labor is included in the required notice provisions of the act. Therefore, we are of the opinion that the obvious absence of the word “labor” in the act is a conscious intent on the part of the legislature to exclude labor from the legislation. Therefore, appellant was not required to give notice to the owner prior to furnishing the labor in this case.

Reversed and remanded with directions to proceed in a manner not inconsistent with this opinion.

Reversed and remanded.

Holt, J., not participating.


text:
    Ruth GIST and Johnny GIST, Her Husband v. MEREDITH MARINE SALES AND SERVICE, INC.
    81-54
    615 S.W. 2d 365
    Supreme Court of Arkansas
    Opinion delivered May 18, 1981

      Branch & Thompson, by: Brian F. MacMillan, for appellants.

      Frierson, Walker, Snellgrove & Laser, by: G. D. Walker, for appellee.
   John I. Purtle, Justice.

This is an appeal from a jury verdict rendered in favor of the appellee upon the appellants’ complaint for damages on account of personal injury. The complaint sounded in tort and alleged negligence on the part of the appellee.

On appeal the appellants argue three points for reversal: (1) the trial court erred in prohibiting the appellants from establishing the feasibility of precautionary measures; (2) the trial court erred in prohibiting the introduction of Plaintiffs’ Exhibit 2-7 in the appellants’ case in chief; (3) the trial court erred in prohibiting appellants’ use of Plaintiffs’ Exhibits 2-7 for impeachment on cross-examination. We do not find reversible error and therefore affirm the judgment of the trial court.

Appellant, Ruth Gist, and her husband, Johnny Gist, brought suit against the appellee as a result of injuries which Ruth Gist suffered on October 5, 1977, during an outing on Lake Norfolk. She and her husband stopped at appellee’s marina for the purpose of using its facilities, including the restrooms. The restrooms were further up the hill than the boating facilities, and Ruth Gist climbed up the steep gravel path to the restroom without any apparent difficulty. On the way back down she slipped and fell, breaking her ankle.

During the jury trial appellants attempted to establish the feasibility of correcting the dangerous situation that existed on the walkway leading to and from the restrooms. They sought to show that the appellee had built concrete steps from the marina to the restrooms. The trial court prevented appellants from introducing photographs of the completed stairway and testimony establishing the feasibility of constructing the steps.

Uniform Rules of Evidence, Rule 407, provides that measures taken after an event are not admissible to prove negligence or comparable conduct in connection with the event. However, the rule does not require the exclusion of subsequent measures if offered for the purpose of proving ownership, control, or feasibility of precautionary measures, if controverted, or for impeachment. The appellee admitted in deposition and cross-examination that the stairway had been discussed for several months prior to the injury of appellant and that he had obtained permission from the Corps of Engineers and had constructed the steps leading to the restrooms after appellant was injured. It was not disputed that the property was owned by the Corps of Engineers or that it was leased by the appellee. In view of the fact that all of the provisions allowing proof of feasibility of precautionary measures were admitted by the appellee, there was no reason to allow such proof.

The purpose of evidence is to present the truth to the court and jury. Generally speaking, whether evidence is admissible depends upon whether it is likely, all things considered, to advance the search for truth. Rule 407 has its exceptions for the purpose of allowing evidence to be admitted, in the proper case, when it is obvious such evidence contributes to a meaningful understanding of the truth. Before the exceptions to Rule 407 come into play it must be shown that the matter sought to be proven by use of the exceptions is controverted. As there was no real controversy of the issues in the case now before the court, it was correct in excluding the testimony.

Arguments two and three will be considered at the same time since both involve the admission of photographs into evidence. The photographs were not reproduced as required by the Rules of this Court, Rule 9(d). In any event, the intended purpose of the photographs was to prove control, ownership, feasibility, and to cross-examine. Certainly, one of the prime purposes of cross-examination is impeachment. However, there was nothing to impeach because the appellee admitted this portion of the allegations of the complaint.

We think Rule 407 changes the prior law on the admission of evidence relating to conditions which have changed after an incident. We previously held that photographs taken after conditions had changed were not admissible in evidence. Dermott Grocery & Com. Co. of Eudora v. Meyer, 193 Ark. 591, 101 S.W. 2d 443 (1937). Even now such photographs could not be offered to prove negligence on the part of the appellee. If the appellee had denied ownership, control, or feasibility, then the evidence and photographs would have been proper. Even if it be considered that such matters were in dispute, this is a matter which falls within the discretion of the trial court. Uniform Rules of Evidence, Rule 403. We could not say, under the circumstances, that the trial court abused its discretion. Therefore, we find no error in the trial court refusing to allow these photographs to be submitted into evidence.

Affirmed.

Holt, J., not participating.


text:
    James IRONS v. STATE of Arkansas
    CR 80-260
    615 S.W. 2d 374
    Supreme Court of Arkansas
    Opinion delivered May 18, 1981

      Gill & Johnson, by: B. Kenneth Johnson, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

This appeal arises from the Desha Circuit Court where appellant was convicted of the rape of his 12-year-old daughter. Appellant urges two points for reversal: first, the trial court erred in permitting a juror who had discussed the matter in detail to serve on the panel; second, the trial court erred in holding an unreported conversation with the attorneys during the course of the trial.

We do not agree with appellant on either argument.

We will not burden the record with all of the facts of this case since the argument involves only the seating of a juror and the holding of an unreported conference.

Prospective juror Herman Westerman revealed to the court that he had discussed the case with a relative of the appellant on the day before the trial. The juror was asked if he had arrived at a decision as to what really happened, and he replied:

Not really, you know, on what I’ve heard of you know. If it’s true, then I would know what to say. But as far as knowing whether it’s true, I don’t. Because, like I say, you can hear a bunch of junk as far as hearsay stuff.

This juror went on to state that he felt he could render a decision based upon what he heard in the courtroom on the date of the trial. The juror further stated that if the proof revealed the appellant had raped his 12-year-old daughter, it would make it hard to come to a decision to understand why. Juror Westerman also stated that he viewed the alleged crime as serious but it would be hard for him to say that such offense would justify a maximum sentence of 50 years or life imprisonment. In any event, the juror was accepted by both the state and the appellant.

After the last juror had been seated the lawyers held a conference at the bench with the court. This hearing was not reported. Nothing in the record indicates the nature of the bench conference nor does the record reveal that any type of action was taken as a result of the conference.

We first consider the qualification of juror Westerman. Since he was not challenged in the trial court, it is untimely to raise the objection on appeal for the first time. Dyas v. State, 260 Ark. 303, 539 S.W. 2d 251 (1976). This may well have been a matter of trial strategy. The experienced trial counsel may have noted the apparent reluctance on the part of the juror to inflict a maximum punishment and considered it good strategy to have at least one such person on the jury.

Ark. Stat. Ann. § 39-105 (Supp. 1979) sets forth the matters which disqualify a person from serving on the petit jury. This statute essentially codified our existing case law and did not change the fact that the seating of a juror is a matter to be determined at the discretion of the trial judge. Strode v. State, 257 Ark. 480, 517 S.W. 2d 954 (1975).

As to the second point for reversal, there is nothing in the record to indicate the conference between the attorneys and court even related to the trial. Since the conference occurred after the last juror was seated, it is just as logical to assume the court was inquiring as to the length of time it would take for opening statements and whether a break was needed at that time. In any event, there is nothing whatsoever to indicate that the appellant’s rights were even discussed, let alone prejudiced. There is not even an allegation of prejudice as a result of the unreported conference. We agree with appellant that every stage of a criminal trial should be reported. However, simply because the court fails to do so does not automatically grant one the right to a new trial after being convicted. Again, there was no objection at the trial level, and the matter cannot be considered for the first time on appeal. An unreported conference such as this will not be considered grounds for reversal unless the appellant is able to allege prejudice with some degree of support from the record or circumstances attending the trial.

Finding no error under either point argued by the appellant, we affirm the trial court.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    UNITED BILT HOMES, INC. v. Thomas ELDER and Loraine ELDER, His Wife
    81-13
    615 S.W. 2d 367
    Supreme Court of Arkansas
    Opinion delivered May 18, 1981

      Wilson, Gunter & Walker, P.A., for appellant.

      Wommack, Lindsay & Associates, by: Mark Lindsay, for appellees.
   Robert H. Dudley, Justice.

This is a usury case. Appellant, United Bilt Homes, contracted to build and to finance appellees’ home for SI7,350 with interest at the rate of 10 percent. The debt was evidenced by an amortized installment promissory note and was secured by a mortgage on the property. After the house was built, the appellees became delinquent in their payments and appellant filed this foreclosure action. The Chancellor found the transaction to be usurious, cancelled the debt and discharged the mortgage lien.

The §17,350 contract price included an §860 charge for insulation and a §960 charge for cabinets, or §1,820 for the two items. Appellant furnished neither and instead gave appellee §1,100 to supply and install both items. If the §720 difference between the price charged and the rebate given is counted as interest, the transaction is usurious. The appellant contends that the §720 should not be considered as interest, but rather it should be considered as profit. It argues that if it had entered into a subcontract with a third party to provide and install these two items at the same figure, it would not be a usurious transaction. Appellant contends that the §720 would be profit under those conditions, and it should make no difference whether a third person is involved.

It does matter, and the distinction lies in the fact that when a third party is involved appellant has the responsibility for selecting that person and has the potential liabilities that accompany sub-letting part of the work. In this case all the appellant has done is to supply §1,100 cash and received §1,820 principal on the promissory note plus 10 percent interest. This is a charge for the use of money as nothing else was supplied. Any sum added to the cash price as interest, differential or carrying charge in excess of 10 percent per year simple interest renders the transaction void. First National Bank of Memphis v. Thompson, 249 Ark. 972, 463 S.W. 2d 87 (1971).

Appellant also contends that the trial court erroneously admitted into evidence a document prepared by appellant’s salesman because it was not properly authenticated. We disagree. Rule 901 (b)(1) of the Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 et seq (Repl. 1979) allows a document to be authenticated by the testimony of a witness with knowledge that a matter is what it is claimed to be. That method was used in this case. Appellant also argues that appellees were party proponents and the trial court erred in allowing one of them to supply the authentication. The trial court was correct. The fact that a party proponent supplied the authentication does not go to the admissibility, although it may go to the weight to be given the evidence.

Appellee has submitted a bill for $4.90 for the cost of printing two paragraphs of the supplemental abstract and states it took one hour to prepare. Appellant has filed a reply brief disputing the two paragraphs in the supplemental abstract. We consider the matter trivial, and under the de minimis rule do not consider it.

Affirmed.


text:
    Peggy L. MEREDITH v. DILLARD DEPARTMENT STORES, INC.
    81-76
    616 S.W. 2d 471
    Supreme Court of Arkansas
    Opinion delivered May 18, 1981
    [Rehearing denied June 22, 1981.]

      R. L. Walloch and Raymond Weber, for appellant.

      Eichenbaum, Scott, Miller, Crockett, Darr & Hawk, PA., by: Frank S. Hamlin, for appellee.
   Robert H. Dudley, Justice.

Appellant, Peggy L. Meredith, contends that appellee, Dillard Department Stores, Inc., violated the Arkansas Equal Pay Act, specifically Ark. Stat. Ann. §§ 81-623, 81-624 and 81-626 (Repl. 1976). The jury’s verdict was: “We find that Dillard Department Stores, Inc., discriminated against Peggy Meredith in the payment of wages because of her sex.” The parties then agreed that the trial judge should compute the damages upon a set of stipulated facts. That stipulation and the admissions in the pleadings are all of the facts we are afforded. The transcript does not contain any of the evidence presented to the jury.

The facts stipulated are that on December 29, 1977, a male began working for appellee at the rate of $5.37 per hour and worked a total of 96 hours through January 14, 1978. Appellant was receiving $3-25 per hour from appellee on the date the male was employed and worked through January 14, 1978. During this period she worked 105 hours and received one and one-half times her normal rate for overtime pay. In addition to these stipulated facts, the allegations of the complaint and admissions in the answer establish that appellee employed appellant on May 23, 1974 and that on February 21, 1977, she began work as a tele-processing monitor.

The trial judge computed the appellant’s damages based upon wages paid during the period in which the male and the appellant were simultaneously employed. He found $159 60 in unpaid wages owing to appellant as a result of the discrimination, assessed $159.60 as liquidated damages and awarded a fee to appellant’s attorneys.

Appellant contends that the trial court used the wrong measure of time in determining wages due as she was wrongfully denied equal wages for the entire period of her employment and for subsequent periods when she was unemployed.

With the proof before us, it is not possible to consider appellant’s arguments. We are asked to allow back wages for the entire period of her employment. Yet, prior to December 29, 1977, there is no proof of the employment of any other person, either male or female; no proof of other wages paid; no proof of other discrimination. To hold that discrimination existed during this period would amount to sheer speculation. The period of simultaneous employment is the only period that the two wages are shown to have been paid. Similarly, the date is the only evidence we are given concerning the appellant’s termination of employment. Again we cannot speculate on the reason employment was terminated or when appellant returned to work, if she did.

The wages paid during the period of simultaneous employment were the only comparative wages before the trial court. Under those circumstances the trial court used the correct period to determine wages.

Affirmed.


author: Steele Hays, Justice.

text:
    Frank HUBBARD, Sr. v. UNIVERSITY OF ARKANSAS MEDICAL SCIENCES
    81-57
    616 S.W. 2d 10
    Supreme Court of Arkansas
    Opinion delivered May 18, 1981

      Central Arkansas Legal Services, by: Thomas J. Ginger, James R. Cromwell, and Griffin J. Stockley, for appellant.

      David A. Stewart and Nelwyn Davis, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

By this appeal we are asked to construe Act 259 of 1959, the Medical Quota Act, as directing the University of Arkansas for Medical Services to adopt standards for determining medical indigency based on the patient’s ability to pay and which follow national and local poverty guidelines. Appellant contends that the Medical Quota Act mandates such standards. We find no provision in the act sustaining that contention.

In December of 1976 appellant’s minor daughter became a patient at UAMS for obstetrical care. The putative father agreed to pay the costs and signed a promissory note for monthly payments of $50. Nothing was paid and demand was made on appellant. Appellant’s earnings were around $100 a week and he offered the sum of $10 a month, which was declined. Suit was filed and appellant raised the Medical Quota Act as an affirmative defense, which the trial court permitted over the opposition of UAMS. We have serious doubts that the Medical Quota Act may be used as a defense to an action in debt for hospital care; however, the issue is not raised on appeal and we are not willing to raise it ourselves.

Sitting as a jury, the trial court heard testimony from UAMS that it had adopted written financial classification guidelines for indigency based on income and family size; that obstetrical care was classified in a different manner from other services; that every patient was expected to pay some part of the cost; that the amount to be paid was arrived at individually by agreement between the patient and the hospital based on the written guidelines and such additional factors affecting the patient as were deemed relevant; that patients who were dissatisfied could appeal to higher levels of the hospital organization; that under Arkansas law the hospital could not write off a bill but in some cases collection was not pursued; that no one was refused medical care; that the legislative appropriation for the hospital contemplated some payment on behalf of every patient; and that under the hospital’s standards appellant’s classification, “Class 10,” indicated no reduction in cost.

Appellant presented the opinion testimony of an expert witness to show methods of measuring medical indigency for hospital and medical services. The witness discussed various concepts of indigency, including the Community Services Administration standards, established by the Office of Management and Budget, said to be the most widely used. In the opinion of this witness, the UAMS guidelines were totally inadequate to provide free or reduced-cost health care to medical indigents. She offered her own criteria and the opinion that appellant should pay nothing for health care in Arkansas. On the conflicting evidence, the trial court found that UAMS had adopted standards classifying medical indigents according to income and family size which were reasonably designed to determine indigency and appropriate charges as intended by the Medical Quota Act. Judgment was granted for $1,235.80 as claimed.

On appeal, appellant contends the standards are invalid because they have no rational relationship to the ability to pay and are not related to any national or local poverty standards; that UAMS does not follow the mandate of the Medical Quota Act and does not follow its own guidelines and, even if valid, there is no evidence the standards were applied by UAMS to appellant. He asks that we reverse and remand the case, directing UAMS to establish and adopt uniform standards for classification of indigency and to apply those to appellant.

The argument that there is no evidence that the standards of indigency were applied to appellant lacks merit for several reasons. It is true that neither side presented proof of any substance on the point, and witnesses for the hospital were uncertain whether the standards had been applied to appellant, as was the appellant. However, several exhibits from among the hospital records relative to appellant reflect the classification of “10,” or “CIO,” providing some indication that the standards were applied. We need not determine whether this is sufficient, as it was not the duty of UAMS to produce that evidence. The requirements of the Medical Quota Act, as appellant construes them, were raised by way of affirmative defense and the burden of going forward on those issues belonged to the appellant rather than to the appellee. Appellee’s burden of proof was met when it presented a prima facie case of the value of medical services rendered to appellant’s minor daughter. Appellant cannot raise affirmative issues and then hold the appellee accountable for a lack of evidence where the testimony on those issues is inconclusive, or in balance. In White v. Williams, 192 Ark. 41, 89 S.W. 2d 927 (1936), it was said: “It is fundamental that the burden of proof rests with the party who makes the allegation.” See, as well, Baumgartner v. Rogers, 233 Ark. 387, 345 S.W. 2d 476 (1961), and Widmer v. Ft. Smith Veh. & Mach. Co., 244 Ark. 971, 429 S.W. 2d 63 (1968). Moreover, the argument is raised for the first time on appeal and thus the trial court was given no opportunity to consider it; so the issue cannot be presented here. As was pointed out in Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980), the burgeoning volume of litigation on appeal makes adherence to this rule imperative.

Appellant’s argument that the standards have no rational relationship to the ability to pay and are not related to any national or local poverty standards, standing alone, is not without merit. The problem is that the Medical Quota Act does not provide the necessary foundation on which to construct the argument. The act plainly lacks language making it incumbent on UAMS to adopt specific standards of medical indigency. The nearest thing in the act is that part of Section 4 which “authorizes,” without directing, county judges or chief administrative officers of municipalities to establish rules in determining medical indigency. Nothing in the act requires UAMS to adopt its own standards and the fact that it has done so does not make compulsory what appears to have been deliberately discretionary. Appellant has refrained from pointing to particular language in the act in support of his argument, except a part of Section 4:

It is the purpose and intent of this Act to provide for a fair and equitable apportionment for the use of the facilities and services of the State Medical Center among the various counties of this State, and among all cities having in excess of 10,000 population, for the treatment of medical indigents, and to provide a method and procedure for charging such counties, and cities having over 10,000 population, for services received by medical indigents at the State Medical Center in excess of the allowed quotas.

But even here, instead of the “mandate” appellant speaks of, we find merely the delegating of authority to designated county and municipal officials to act on the matter of indigency. The basic purpose of the act is not to require standards of indigency, but to establish a quota system to distribute proportionately the cost of indigent care among the counties, using population as a basis. There is the additional provision in Section 2(b) that if a person seeks to use the hospital under the quota system he must first obtain written certification of need from the county judge or chief administrative officer of his municipality. It is admitted that appellant did not follow this procedure, but it also appears that the hospital does not require compliance. However, that issue has not been argued, and we do not treat it here. It is enough to say that appellant’s arguments that the CSA guidelines or other standards are a truer index to indigency than those adopted by UAMS, are better addressed to the hospital administration or to the legislature, as it is beyond our function to insert provisions into the act. It is the province of the judicial branch “only to construe the statutes, not to enact them.” Leonard v. State, 95 Ark. 381, 129 S.W. 1089 (1910). The construction and interpretation of statutes must come from the language used in the statutes and not from what the lawmakers may have meant. State ex rel. Atty. Gen. v. Trulock, 109 Ark. 556, 160 S.W. 516 (1913).

It is often said that the cardinal principle of statutory construction is to declare the intention of the legislature. Ark. State Huy. Comm. v. Mabry, 229 Ark. 261, 315 S.W. 2d 900 (1958). Our duty is to interpret the statutes as they read and not as we might have them read. City of N.L.R. v. Montgomery, 261 Ark. 16, 546 S.W. 2d 154(1977). With that in mind, it would be impossible to say that there is any expressed intent in Act 259 that the UAMS adopt a specific standard of medical indigency, such as the CSA guidelines, and difficult to say that the act created more than an inference that standards of indigency are required. We think the trial court correctly held that the standards adopted by UAMS, although not what appellant would like them to be, are reasonably well designed to determine medical indigency and make appropriate charges, as intended by the act. The holding is supported by substantial evidence.

Affirmed.

Holt, J., not participating.


author: Joseph C. Kemp, Special Justice.

text:
    Bonnie Faye FORD v. Taid FORD, Jr.
    80-227
    616 S.W. 2d 3
    Supreme Court of Arkansas
    Opinion delivered May 18, 1981
    [Rehearing denied June 15, 1981.]

      Cathey, Goodwin, Hamilton & Moore, by; Donis B.

      Hamilton, for appellant.

      Burris & Berry, for appellee.
   Joseph C. Kemp, Special Justice.

The Decree of the Chancery Court granted Appellee (husband) an absolute divorce from Appellant (wife) and further granted Appellee custody of their minor daughter with Appellant given reasonable rights of visitation, all on uncontested evidence.

The Appellant appealed from certain portions of the Decree raising three issues, namely: (1) That the Chancellor erred in the division of personal property by not applying the criteria contained in Act 705 of 1979; (2) Not awarding alimony to Appellant; and (3) Not awarding Appellant’s attorneys an adequate fee.

The Court of Appeals in Ford v. Ford, 270 Ark. 349, 605 S.W. 2d 756 (Ark. App. 1980) upheld the Chancellor’s (1) refusal to award alimony to Appellant retaining jurisdiction for the purpose of awarding alimony in the future should the needs of the Appellant require modification of the Decree; and (2) awarding to Appellant’s attorneys a temporary fee of $500.00 and afee of $1,000.00 at the completion of the case; but (3) reversed the Chancery Court in its division of personal property finding that the Chancellor had not applied Act 705 of 1979, which requires an equal division, but for exceptional circumstances. The Court of Appeals allowed Appellant’s attorneys an additional fee of $1,500.00 and costs for their services in connection with the appeal to that Court.

We granted certiorari.

We reverse the Court of Appeals and modify and affirm the Chancery Court in the division of personal property; we affirm the Court of Appeals and the Chancery Court in the allowance of fees and costs to Appellant’s solicitors for services, both in the Chancery Court and on appeal to the Court of Appeals, and reverse that portion of the Decree and the decision of the Court of Appeals pertaining to alimony.

The parties were married in March of I960. Two children were born of the union, namely: a son in 1961 and a daughter in 1974. The parties began their marriage farming on rented land. The Appellant, as the housewife, worked in the home and helped considerably in the fields until approximately 1968. She then worked approximately two years away from the home in private enterprise. Her earnings from such were used for family purposes and/or invested jointly with Appellee. It is disputed as to whether Appellant was a good homemaker, especially in providing for the needs of the Appellee normally coming from within the home. The record reflects that the Appellant began experiencing depression prior to becoming pregnant with their daughter and that such depression became acute a short time prior to the daughter’s birth. She was hospitalized prior to the birth of the daughter in Missouri to be treated for the depression and immediately following the birth was transferred directly from the Maternity Wing to. the wing for psychological treatment. Since 1974 the Appellant has had intermittent lengthy institutional care for recurrent severe depression and has been regularly under the care of a psychiatrist since that time. She has undergone electric shock therapy and has attempted suicide. The evidence clearly supports the conclusion that Appellant has a genuine longstanding depression of immobilizing effect.

The parties have not resided together for the past five and one-half years, although they have had sexual relations on several occasions, most recently the day before Appellant was served with summons after this suit was filed. The Appellee has clearly been an industrious, capable farmer. Over the years the parties were able to acquire and improve farm lands of approximately 190 acres, to build a home and to accumulate substantial savings and farm equipment, with personal property aggregating approximately $300,000 all debt free. In addition, the Appellee farms some additional 800 acres which he rents from his father.

At the close of the trial the Chancellor made lengthy comments concerning his findings of fact. The decree on uncontested evidence granted the divorce to the Appellee along with the custody of their daughter, which Appellant conceded to be in the daughter’s best interest. All real estate owned as an estate by the entirety was converted to tenancy in common; all real estate, with the exception of the homestead and one acre of land on which it was situated, was ordered sold. Possession of the homestead and one acre of land was given to Appellee until the daughter reaches her majority, or leaves home, at which time the Court may order it sold. Alimony was denied for the time being, but the Court retained jurisdiction as to possible future needs of the Appellant. All personal property owned jointly was converted to tenancy in common and divided equally. All other personal property, with a net value of approximately $300,000.00 was divided, 10% to Appellant and 90% to Appellee, and Appellee ordered to pay Appellant $30,000.00.

The Brief of Appellant addresses the issue of division of personal property with two arguments, namely:

I

THE CHANCELLOR ERRED IN NOT DISTRIBUTING PERSONAL PROPERTY EQUALLY AS REQUIRED BY ACT 705 OF 1979; and
II
NOTWITHSTANDING ACT 705 OF 1979, THE CHANCELLOR SHOULD HAVE DIVIDED THE PERSONAL PROPERTY EQUALLY BETWEEN THE PARTIES UNDER THE FACTS HERE.

We choose to treat the two arguments together. The provisions of Act 705 of 1979 pertaining to the division of personal property and applicable here, same being Arkansas Statutes § 34-1214, are as follows:

“DIVISION OF PROPERTY. — (A) at the time a divorce decree is entered:
(1) All marital property shall be distributed one-half (1/2) to each party unless the court finds such a division to be inequitable, in which event the court shall make some other division that the court deems equitable taking into consideration (1) the length of the marriage; (2) age, health and station in life of the parties; (3) occupation of the parties; (4) amount and sources of income; (5) vocational skills; (6) employability; (7) estate, liabilities and needs of each party and opportunity of each for further acquisition of capital assets and income; (8) contribution of each party in acquisition, preservation or appreciation of marital property, including services as a homemaker. When property is divided pursuant to the foregoing considerations the court must state in writing its basis and reasons for not dividing the marital property equally between the parties.
(3) Every such final order or judgment shall designate the specific property both real and personal, to which each party is entitled; and when it appears from the evidence in the case, to the satisfaction of the court, that such real estate is not susceptible of the division herein provided for without great prejudice to the parties interested, the court shall order a sale of said real estate to be made by a commissioner to be appointed by the court for that purpose, at public auction to the highest bidder upon the terms and conditions, and at the time and place fixed by the court; and the proceeds of every such sale after deducting the costs and expenses of the same, including the fee allowed said commissioner by said court for his services, shall be paid into said court and by the court divided among the parties in proportion to their respective rights in the premises ...
(B) For the purpose of this statute “marital property” means all property acquired by either spouse subsequent to the marriage except:
(1) Property acquired by gift, bequest, devise or descent;
(2) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise or descent;
(3) Property acquired by a spouse after a decree of legal separation;
(4) Property excluded by valid agreement of the parties; and
(5) The increase in value of property acquired prior to the marriage.”

At the close of the trial the Chancellor dictated into the record extensive findings of fact so as to give clarity to the Decree. They are:

First I want the record to reflect that although neither party has filed any formal pleadings as to the applicable law, advancements have been made as to the constitutionality of Act 705 of 1979 as applied to this case. The court is satisfied that Act 705 cannot apply retroactively to entirety estates created before enactment of 705 and that Poskey v. Poskey, 228 Ark. 1, is in point.
The court finds that the plaintiff, Taid Ford, Jr., is entitled to a divorce and it has been treated as an uncontested action for divorce. Taid Ford, Jr., is a proper party to have custody of the five-year old child of the parties, Brandy Ford. The court does not deem it proper to enter any decree as to custody on Barry Ford who is 18 years of age and is a student at Arkansas State University.
With respect to the property division the court finds that the parties were married in March, I960, in New Jersey and moved back to Arkansas to begin farming in 1961. Taid Ford, Jr. is and has been throughout the marriage an unusually hardworking aggressive farmer. The defendant, Bonnie Ford, assisted Mr. Ford to a limited extent on the farm in the 1960s. She chopped some cotton, picked some cotton and weighed sacks of cotton as they were brought in by other pickers. From sometime, probably in 1967, Mrs. Ford did not assist her husband in the farming operations and spent a good deal of her time sitting in one green colored rocking chair in her house suffering from severe depression. Mrs. Ford went to work at the McGee Company in Pocahontas, Arkansas, probably in 1970, and worked there probably through 1972. Her earnings from the McGee Company were commingled with her husband’s earnings from the farming ventures through that time. Commencing probably about January 1, 1973, Bonnie Faye Ford began to suffer from severe depression, stayed in the home most of all of 1973 contributing little to the farming efforts. About January, 1974, she became pregnant with the child, Brandy, who was born September 27, 1974. From approximately July, 1974, to this date defendant has spent most of her time either as an in-patient or an out-patient. The defendant has gone through electric shock treatments on two occasions and had other chemical treatments so that her memory is extremely vague.
The defendant went to St. Louis two or three months before her child was born to see a psychiatrist and was sent to a wing referred to as the “psych ward.” She was then sent to a regular part of the hospital and had her baby on September 27, 1974, and went back into the “psych ward” and had shock treatments. At some stage she stayed with her sister and had an apartment of her own in St. Louis. She was again hospitalized in Missouri Baptist Hospital and then was transferred to the Malcolm Bliss Mental Institution and was back to the Missouri State Hospital for shock treatment shortly again. She returned to Arkansas to stay with her mother and father and was there a short time when she attempted suicide by an overdose of drugs and went to George Jackson Hospital. She was under care for a while there and then under the care of a private psychiatrist in rehabilitation and then back to her mother and father’s. In May she returned to the George Jackson Mental Health Center, was out for a short time and has been back in the hospital as an in-patient since September 10, 1979. This summation is given to show the fact that Bonnie Ford has not contributed any work to the marriage at all during the last five and a half years.
The parties owned as tenants by the entirety the 29 acres and the court orders that the tenancy entirety be converted to a tenancy in common. The plaintiff, Taid Ford, Jr. shall have possession of the homestead and the one acre on which it is located and the other 28 acres shall be sold at public sale with either party being allowed to bid. Possession of the one acre and the homestead shall be in Taid Ford, Jr. until such time as Brandy Ford shall reach the age of majority or leave home, after which time the court may order the sale of the home.
The parties own as tenants by the entirety the 157 acres and that is converted to a tenancy in common and shall be sold at public sale.
The court denies the defendant any interest in any of the principal or income from the 80 acres in the Taid Ford, Jr. Trust which is identified by Exhibit “1”.
The court denies the defendant any interest in the 80 acres of hill land which is in the name of Barry Ford and purchased from a bank account in the name of Taid Ford, Jr. and Barry Ford.
The court finds that Taid Ford, Jr. is without fault in the divorce and finds that Bonnie Faye Ford has not contributed anything of substance to the marital property during the last five and a half years. However, the court finds under the circumstances she should share in some of the personal property.
Plaintiff is in possession of approximately if 160,000.00 of farming equipment. While it is true that defendant has contributed nothing in the last few years to the acquisition of the property, it is true that she worked both in the home and to a limited extent on the farm and did work at a local factory some years ago and contributed in the early years of the acquisition. Plaintiff has testified that one-fifth to one-sixth of his earnings come from the property held as tenants by the entirety and during the last few years he has supplied very little money to the defendant. Therefore, the court thinks it proper to award her that part of the property which should be hers. Plaintiff has testified that the bulk of the property has been bought since 1974 when federal allotments were changed and farmers could farm all the rice they wanted to farm. He has testified that rice requires extensive machinery and that is the reason for having $160,000.00 worth of equipment. The earnings of the plaintiff over the last five years run from a low of approximately $59,000.00 before tax to a high of approximately $83,000.00.
Assuming that 20% of the plaintiffs income came from land owned by tenancy by the entirety, then half of that 20%, or 10%, of the purchase price of each piece of farm equipment would have come from lands which equitably should be attributed in this accounting to Bonnie Faye Ford and on farm equipment alone this would amount to $16,000.00 to her. At the present time plaintiff has 4,000 bushels of soybeans in storage worth $6.25 a bushel, which makes the beans worth $25,000.00 and 20,000 bushels of rice worth $4.00 a bushel, or $80,000.00, making a total of $105,000.00 worth of crops in storage. On this $105,000.00 income taxes have not been paid and there is due crop rent of 25% on part of the crop. (At this point counsel for Mrs. Ford inquired to ask the court if it were finding $25,000.00 worth of beans and $100,000.00 worth of rice. The court responded that it was finding $80,000.00 for the rice for a total of $105,000.00. The court stated it understood Mr. Ford to testify that he had 20,000 bushels of rice at $4.00 a bushel in the elevator and that counsel mistakenly understood him to testify to 25,000 and if there was an error the court would change the figure.)
The court found from the testimony that there was a net amount of approximately $60,000.00 worth of beans and the court orders $6,000.00 to be paid to Mrs. Ford in lieu of property.
The same formula could be applied on each of the following: The debt from Harry Jones would result in a $2,200.00 allocation to Bonnie Faye Ford. (Counsel for Mrs. Ford again interrupted the judge to remind him that the proof showed that it was $22,000.00 two years ago and there would be 10% interest on that. The court responded as follows: “Well, it really doesn’t matter. It really doesn’t matter because I am going to round this off in the end. I’m simply giving — I’m not doing this for you, gentlemen, I’m doing it for the benefit of the parties so they will know exactly — I’m going to come up with a figure of $30,000.00 which is a rounded figure, and I’m doing this solely for their benefit, so they will understand where it came from.”)
The same formula may be applied to the $25,000.00 Treasury Bond, the $22,500.00 deposit by the plaintiff in the tax-free Keogh plan at Farmers and Merchants Bank; the court uses the same formula on the account at the Bank of Pocahontas, the Farmers and Merchants Bank, the speed boat, the fishing boat and the stocks and delivery debentures and to equitably divide that property the court orders Mr. Ford to pay Mrs. Ford $30,000.00 for her interest in those properties.
The court finds that the bank account in the approximate sum of $4,260.00 is owned by both parties and is to be shared equally.
The court orders the plaintiff to cause to be transferred to the defendant 10% of all the stock and delivery debentures which are in his name alone and orders that those in joint names be converted to a tenancy in common.
The court finds that even though Mr. Ford is without fault, the court can award a reasonable attorney’s fee considering all the circumstances and that Mrs. Ford’s attorney has done a good deal of work for a relatively impecunious client and, therefore, the court assesses $1,000.00 against Mr. Ford to be paid to Mrs. Ford’s attorneys.
The following is for the benefit of an appellate court in the event of an appeal and in the event it would give a prospective opinion. This court is concerned that Mrs. Ford will be back for additional alimony in the future, for a monthly amount as is proper under my decision. Because this court is not satisfied that Mrs. Ford will have her property six months from now and had the arguments not been raised, the court could have applied Act 705 retroactively against the vested interest of the parties and could have placed all the lands in Mr. Ford’s name and could have ordered him to pay a substantial weekly sum. It is the humble opinion of this trial Court that would have been a better decision. Of course, if this should be appealed by either party at a de novo trial and the appellate court, if it doesn’t like this court’s devision, could divide the property as it saw fit for the first time there. If it sees fit to reject the Poskey v. Poskey arguments it could make such application under Act 705 and perhaps give guidance for trial courts.
The court declines to set weekly or monthly alimony in this case. The court reserves jurisdiction in the cáse and assumes that in a very short time the property will be gone and the case will come up again.

We agree with the Court of Appeals that Act 705 of 1979 was the applicable law pertaining to division of property. Act 705 was effective at the time the Decree of Divorce was dated on December 19, 1979 and at the time it was entered of record on January 23, 1980. We disagree, however, with the Court of Appeals in holding that the Chancellor did not comply with the provisions of Act 705 of 1979 by failing to divide the personal property equally. We hold that the Chancellor’s findings fully support his division of the property owned other than as tenancy in common on the basis of 90% to the Appellee and 10% to the Appellant. We note particularly that his findings address the criteria to be given consideration by the Court in making a division other than equal set forth in Arkansas Statutes § 34-1214(A)(1) above cited. We therefore reverse the holding of the Court of Appeals on this point. We further find that the Chancellor mistakenly found that the Appellee had only 20,000 bushels of rice valued at $4.00 per bushel for a total of $80,000.00 when in fact the record reflects that there were 25,000 bushels of rice at $4.00 per bushel for a total of $100,000.00. Therefore, we modify the Chancellor’s money award to the Appellant increasing it by the sum of $2,000.00 making a total award of $32,000.00.

We turn next to Appellant’s argument No. 3, which is:

III
THE CHANCELLOR ERRED IN NOT AWARDING APPELLANT ALIMONY.

The Court of Appeals upheld that portion of the Decree of the Chancery Court holding that “The Court declines to award alimony to the Defendant, but retains jurisdiction for the purpose of awarding alimony in the future should the needs of the Defendant require modification of the Decree.” Arkansas Statutes § 34-1211 pertaining to alimony, in part provides:

“When a Decree shall be entered the court shall make such order touching alimony of the wife or the husband and care of the children, if there be any, as from the circumstances of the parties and the nature of the case shall be reasonable.” ...

We recognize that the allowance or disallowance of alimony in a divorce action is at the Chancellor’s discretion, after consideration of all circumstances. (Lewis v. Lewis, 255 Ark. 583, 502 S.W. 2d 505 [ 1973]). However, we interpret Arkansas Statute § 34-1211 as requiring that the Decree of Divorce allow or disallow alimony and not retain jurisdiction for the purpose of allowing or disallowing it in the future based on changed conditions. We therefore reverse the Court of Appeals and the Chancery court and award Appellant alimony in the amount of Fifty ($50.00) dollars per month subject, of course, to modification based on changed circumstances.

Finally, we address Appellant’s argument No. 4, which is:

IV
THE ATTORNEY’S FEE AWARDED TO APPELLANT BY THE CHANCELLOR IS INADEQUATE UNDER THE CIRCUMSTANCES HERE.

The Chancellor allowed Appellant’s solicitors a temporary fee of $500.00 and afee of $1,000.00 at the completion of the trial. The Court of Appeals affirmed the Chancery Court on this point and allowed Appellant’s solicitors an additional fee of $1,500.00 and costs for services rendered in the appeal to that Court. Appellant argues that the allowance of these fees is grossly insufficient. For the record we note again that the allowance of fees is within the sound discretion of the trial court and will not be disturbed on appeal in the absence of clear abuse. Equitable Insurance Society v. Rummell, 257 Ark. 90, 514 S.W. 2d 224 (1974). We agree with the Court of Appeals that this principle is especially apt when applied to domestic suits where, as here, substantial assets are involved; where, as here, the wife’s share of all the properties is sizable, it is even more appropriate for the trial court’s discretion to govern as he is in the position of balancing and weighing many factors against each other. The Appellant is receiving substantial resources for her own use and doubtless can financially afford to participate in her attorneys’ charges. Many cases affirm the wisdom of giving the trial court broad discretion to determine what portions of a wife’s attorneys’ fees should be paid by the husband. Lytle v. Lytle, 266 Ark. 124, 583 S.W. 2d 1 (1979); McGuire v. McGuire, 231 Ark. 613, 331 S.W. 2d 257 (I960); Yohe v. Yohe, 238 Ark. 642, 383 S.W. 2d 665 (1964); Cook v. Cook, 233 Ark. 961, 349 S.W. 2d 809 (1961). We affirm the trial court’s award of $1,500.00 attorneys’ fees and the Court of Appeals’ award of $1,500.00 and costs for services involved in the appeal to that Court, and further and additionally allow Appellant’s solicitors a fee of $750.00 for services rendered in this Certiorari Review.

Reversed in part and affirmed as modified.

Special Justice Sam Hilburn joins in this opinion.

Dudley and Hays, JJ., disqualified and not participating.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I disagree with the majority in the matter of the settlement of the personal property owned by these parties at the time of the divorce. I accept the figure of $300,000 as the value of the personal property owned by them at the time of the dissolution of the marriage. However, I cannot accept the division of the property in a manner which gives the husband 90% and the wife 10% of the jointly owned property. Equity requires reversal of these figures if the property is to be divided other than in equal shares as required by Act 705 of 1979.

According to the majority ruling in this case, women are worse off now than they were before Act 705 was enacted by the General Assembly. Divorced women cannot stand any more progress if this is progress.

The parties to this action were married when appellant was 17 years of age and still enrolled in high school. She went to New Jersey, where he was stationed in the service, and married her 21 year old sweetheart who was a college graduate. At that time neither party owned any property and in fact the appellee was in debt to his father. The following year (1961) the couple started their life together as sharecroppers. Soon they purchased a 157-acre farm and subsequently paid for it. His family gave them 29 acres upon which they built a home. The appellee has continued to expand his operations even while the appellant has been hospitalized. He, no doubt, is a hard worker and has a head for business. It cannot be doubted that she toiled in the fields, worked in a factory, kept house, and bore and helped raise their children up until recently. Perhaps this couple drove too hard in their attempt to get ahead. Unfortunately, the wife is no longer able, either physically or mentally, to help on the farm. She became mentally distressed some 13 years after the marriage and was hospitalized from time to time for treatment. She was in the hospital before her daughter was born and in fact was moved from the psychiatrie ward for the birth of the child and later moved back to the psychiatric ward. Finally, in 1977 she attempted suicide when it became apparent she would again have to be hospitalized.

Appellee has recently acquired an 80-acre farm in his name as a trust estate. He also acquired another 80-acre farm and placed it in the name of their son. As previously stated, they owned personal property of the value of at least $300,000 at the time of the divorce.

The trial court awarded appellee $270,000 and appellant $30,000 out of the personal property. She received nothing for the two 80-acre farms mentioned above. The appellee was given possession of the house and one acre of land and custody of the children. This unfortunate woman has been divorced and her children taken from her through no fault of her own. This court and the trial court have paid no heed to Act 705 of 1979 which clearly states:

All marital property shall be distributed one-half (1/2) to each party unless the court finds such a division to be inequitable, ...

The act further declares marital property means all property acquired by either spouse during the marriage. There are certain exceptions which are not involved in this case.

The appellee had no grounds for divorce, and the fact that appellant did not contest it did not give the court the right to grant a divorce. We have not yet adopted no-fault divorce in Arkansas.

The court of appeals did at least apply the principles of equity to the settlement of the personal property instead of accepting the harsh treatment of the appellant in the trial court and which is now adopted by this court. If I understand the meaning of equity, it has not been done by this court. I would at least award appellant $150,000 from the personal property.


text:
    Carolyn Ann Pickett CASKEY v. Jerry D. PICKETT
    615 S.W. 2d 359
    Supreme Court of Arkansas
    Opinion delivered May 18, 1981

      Henry C. Morris, for appellant.

      Michael Castleman, for appellee.
   John I. Purtle, Justice.

Ordinarily we do not dispose of this type of motion by written opinion; however, since the question is apt to recur, we think it best to dispose of the motion by a written opinion. The question is presented by a motion for a rule of the clerk to require the acceptance of an appeal in the supreme court. The decision in this case was rendered on August 15, 1980, and was entered nunc pro tunc on September 30, 1980. The appellant gave notice of appeal prior to the entry of the judgment. The record was tendered to this court within the time allowed by law if the date is figured from the entry of the judgment. However, if time is figured from the rendition of the judgment, or from the notice of appeal, the transcript is late.

Arkansas Rules of Appellate Procedure, Rule 4 (a), provides that notice of appeal must be filed within 30 days from the entry of the judgment, decree or order appealed from or within 10 days from the disposition of post-judgment motion extending the time in which to appeal. The rule does not shorten the 30 days granted in which to give notice of appeal. Rule 4(e) specifies that a judgment or decree is entered within the meaning of this rule when it is filed with the clerk of the court in which it was tried. J. Wright, Appellate Advocacy Handbook 27 Processing an Appeal § 4 (1980).

Rule 2 (a)(1) allows an appeal from a final judgment or decree entered by the trial court. In Wilhelm v. McLaughlin, 228 Ark. 582, 309 S.W. 2d 203 (1958), we stated:

The statute provides that the notice of appeal must be filed within 30 days from the entry of the judgment or decree.... We have held that the period of 30 days is to be calculated from the date on which the judgment is filed with the clerk for entry on the record. ... We adhere to that view and do not mean by this opinion to shorten the time within which a notice of appeal may be filed after the entry of the judgment or decree. (Emphasis added)

Therefore, a party has 30 days from the actual entry of the judgment into the records in which to file an appeal. In Wilhelm we also held that a notice of appeal filed between the rendition and entry was not void. There we stated such a rule, as argued for by the appellee in the present case, would work needless hardships on a number of people. The main point in the Wilhelm opinion was that we specifically stated that an early filing of notice did not shorten the time within which to appeal. This is specifically the question presented by the present motion.

In the case of Cranna, Administrator v. Long, 225 Ark. 153, 279 S.W. 2d 828 (1955), we stated:

When an appeal is permitted by law any party to the action may appeal from a judgment or decree, by filing with the court in which the case is tried a notice of appeal within 30 days from the entry of the judgment or decree appealed from. ... The filing of the judgment with the clerk for entry is the decisive date under the above-quoted statute. ...

One of the earliest cases reviewed was that of Providence Rubber Co. v. Charles Goodyear, 73 U.S. 153 (6 Wall), 18 L. Ed. 762 (1868), and in part stated:

It appears to have been entered “as of the 28th of November.” But this circumstance did not affect the rights of the parties in respect to appeal. Those rights are determined by the date of the actual entry, or of the signing and filing of the final decree. That test ascertains, for the purpose of appeal, the time of rendering the decree, as the 5th of December, 1866. The appeal in this case, therefore, was rightly taken to the present term.

Without burdening the record, it appears that all cases reviewed hold to the principle that the date of entry of the decree, order or judgment is the trigger for the running of appeal time.

A nunc pro tunc order cannot be utilized to make the record show what ought to have been done, but was not done. Its purpose is to make the record reflect the transaction which actually occurred, and which is not reflected by the record because of mistake or inadvertence. Harrison v. State, 200 Ark. 257, 138 S.W. 2d 785 (1940).

The Supreme Court of Oregon in Turlay v. Farmers Insurance Exchange, 488 P. 2d 406 (Ore., 1971), stated;

The office of a nunc pro tunc entry is to make a record of what was previously done, but not then entered; not to make an order now for then, but to enter now for then an order previously made.

We recognize that an unusual delay in the entry of a decree or judgment frequently works a hardship on one of the parties. However, we point out that it is not alone the duty of the court to see that the record is entered but the responsibility also rests with the attorneys involved. Certainly, if any one of the parties involved had been diligent in procuring the entry of the order, we would not have the present case before us.

The notice of appeal was timely filed, as supported by case law, statute and rule. Therefore, we do not think it would do justice to penalize a party who filed notice prior to the entry of the decree or judgment. We hold that the filing of notice of appeal before entry of a final order simply becomes effective at the time the final order is entered. The adverse party has not been disadvantaged or suffered any harm. Therefore, the rule will be granted.