{ "id": 6141048, "name": "BUDGET TIRE & SUPPLY CO., et al. v. FIRST NATIONAL BANK of Fort Smith, et al.", "name_abbreviation": "Budget Tire & Supply Co. v. First National Bank of Fort Smith", "decision_date": "1996-05-08", "docket_number": "CA 94-504", "first_page": "232", "last_page": "234", "citations": [ { "type": "official", "cite": "53 Ark. App. 232" }, { "type": "parallel", "cite": "920 S.W.2d 856" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "142 S.W. 508", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1912, "opinion_index": 0 }, { "cite": "101 Ark. 348", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1311033 ], "year": 1912, "opinion_index": 0, "case_paths": [ "/ark/101/0348-01" ] }, { "cite": "173 S.W. 845", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1915, "opinion_index": 0 }, { "cite": "117 Ark. 118", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1564908 ], "year": 1915, "opinion_index": 0, "case_paths": [ "/ark/117/0118-01" ] }, { "cite": "94 S.W. 932", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1906, "opinion_index": 0 }, { "cite": "79 Ark. 95", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1495604 ], "year": 1906, "opinion_index": 0, "case_paths": [ "/ark/79/0095-01" ] }, { "cite": "32 Ark. 74", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1877133 ], "year": 1877, "opinion_index": 0, "case_paths": [ "/ark/32/0074-01" ] }, { "cite": "51 Ark. App. 188", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139135 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark-app/51/0188-01" ] } ], "analysis": { "cardinality": 278, "char_count": 4971, "ocr_confidence": 0.79, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.17493683994703937 }, "sha256": "b054b95da0825ea07b62e33901eff0cfa93608b3ebc171ca5b7479041a161820", "simhash": "1:4689cb51f3c0257f", "word_count": 847 }, "last_updated": "2023-07-14T22:00:24.662479+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BUDGET TIRE & SUPPLY CO., et al. v. FIRST NATIONAL BANK of Fort Smith, et al." ], "opinions": [ { "text": "MELVIN Mayfield, Judge.\nBy opinion dated December 20, 1995, this court dismissed the appellants\u2019 appeal in this case. See 51 Ark. App. 188, 912 S.W.2d 938 (1995). The appellants have filed a petition for rehearing, and the court has denied the petition. I dissent.\nI also dissented from the opinion that dismissed the appeal in the first instance; however, I want to more fully explain my position by this present dissent.\nI start by pointing out that the majority opinion which dismissed the appeal did so on the basis that the appellants filed their appeal from \u201cthe final order entered in this case on January 26, 1994,\u201d and the majority opinion held that this order was \u201csimply the chancellor\u2019s confirmation and approval of a commissioner\u2019s report of the sale of real and personal property in foreclosure.\u201d\nThe majority opinion then stated that the foreclosure sale followed the entry of a consent decree entered on November 16, 1993, in a suit which had been consolidated with this suit.\nThe majority opinion then stated that the November 16, 1993, consent decree gave judgment in rem against certain real and personal property but that ownership of a few of the items of personal property had also been determined in a previous order in that case entered on April 30, 1993.\nThen the majority opinion stated that the appellants\u2019 argument in the present appeal \u201cis based upon alleged errors in the April 30, 1993, decision\u201d and \u201cin order to determine whether appellants should have filed a notice of appeal within thirty days of the April 30, 1993, decision, it is first necessary to decide whether that decree was a final order.\u201d\nThe majority opinion then discussed the elements necessary to constitute a final judgment or decision and concluded that \u201cthe April 30, 1993, decision was not a final order for purposes of appeal\u201d because all the claims in the consolidated case remained for trial.\nThen the majority opinion stated: \u201cNext, it is necessary to determine whether the November 16, 1993, consent decree was final for purposes of appeal.\u201d The opinion said that a decree granting foreclosure and placing the court\u2019s directive into execution is final and appealable and it would be necessary to file a notice of appeal within thirty days from the entry of such an order but that a decree confirming a foreclosure sale is also a \u201cseparate, final, and appealable order, and a notice of appeal must also be given within thirty days of that decree.\u201d\nThe majority opinion then administered the coup de grace with the following conclusion:\nWe therefore hold that the April 30, 1993, decision was not a final order from which appellants should have filed a timely notice of appeal. However, the only issues for which a timely appeal has been taken relate to the confirmation and approval of the report of the foreclosure sale, and appellants have not alleged error in that sale. Because appellants did not file their notice of appeal within thirty days from the entry of the November 16, 1993, consent decree, which was final and appealable, this court lacks jurisdiction to hear this appeal. [Emphasis added.]\nThe point in the appellants\u2019 petition that I want to discuss first is that the November 16, 1993, decree, which the majority opinion says is the final and appealable order from which the appellants should have appealed, was a consent decree. The appellants\u2019 petition for rehearing states that \u201cArkansas has never allowed an appeal from a consent decree before this case.\u201d They cite Saleski v. Boyd, 32 Ark. 74 (1877), and Martin v. Houck, 79 Ark. 95, 94 S.W. 932 (1906), for this proposition. See also The McCall Company v. Smith, 117 Ark. 118, 173 S.W. 845 (1915), and Cave v. Smith, 101 Ark. 348, 142 S.W. 508 (1912). They also point out that Rule 2 of the Arkansas Rules of Appellate Procedure does not specifically mention consent decrees but that Rule 54(a) of the Arkansas Rules of Civil Procedure provides that judgment \u201cas used in these rules includes a decree and any order from which an appeal lies.\u201d Because it does not appear that an appeal may be taken from a consent decree, I would hold that the appeal from the January 26, 1994, decree was a viable appeal in this case.\nIn the second place, I agree with the appellants\u2019 argument that they are not attempting to appeal from the November 16, 1993, decree granting foreclosure, but their appeal from the January 26, 1994, decree brings up for review any intermediate order (which would include the April 30, 1993, order) involving the merits and necessarily affecting the orders and rulings in that separate but consolidated case. See Arkansas Rules of Appellate Procedure 2(b).\nI would grant rehearing and address the merits of the points raised on appeal.", "type": "majority", "author": "MELVIN Mayfield, Judge." } ], "attorneys": [], "corrections": "", "head_matter": "BUDGET TIRE & SUPPLY CO., et al. v. FIRST NATIONAL BANK of Fort Smith, et al.\nCA 94-504\n920 S.W.2d 856\nCourt of Appeals of Arkansas En Banc\nOpinion Upon Denial of Rehearing delivered May 8, 1996\nDissenting Opinion delivered May 8, 1996" }, "file_name": "0232-01", "first_page_order": 250, "last_page_order": 252 }