{
  "id": 1734213,
  "name": "Pierce v. Pierce",
  "name_abbreviation": "Pierce v. Pierce",
  "decision_date": "1964-04-27",
  "docket_number": "5-3012",
  "first_page": "46",
  "last_page": "49",
  "citations": [
    {
      "type": "official",
      "cite": "238 Ark. 46"
    },
    {
      "type": "parallel",
      "cite": "377 S.W.2d 868"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "225 Ark. 153",
      "category": "reporters:state",
      "reporter": "Ark.",
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        1642733
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/ark/225/0153-01"
      ]
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  "last_updated": "2023-07-14T18:48:57.788571+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Pierce v. Pierce."
    ],
    "opinions": [
      {
        "text": "Prank Holt, Associate Justice.\nThis appeal arises from the allowance of a portion of a claim filed by the appellee, C. J. Pierce, d/b/a C. J. Pierce Lumber Company, against the estate of his father, M. H. Pierce, deceased. In September, 1960, a month following his father\u2019s death, appellee filed his original claim for $10,371.28 seeking reimbursement for one-half of a salary paid by him to his employee, a timber' cruiser, for a period of three and one-half years [1955-58] and, also, the repayment of certain severance taxes allegedly paid by appellee. Subsequently this claim was amended and increased, to $25,490.00 alleging additional claims based upon the nse of appellee\u2019s truck and the rendering of personal services in the purchase of timber lands by appellee for his father during this three and one-half year period. Upon appellee\u2019s claim being denied by the executrix of his father\u2019s estate, the issue was submitted to the Probate Judge who allowed appellee\u2019s claim to the extent of $12,675.00. After deducting $12,491.41, which appellee admittedly owed his father\u2019s estate, the court rendered judgment for appellee in the sum of $183.59 against the appellant estate.\nOn appeal appellant relies for reversal upon two points: (1) The court erred in finding there was a contract, expressed or implied, to compensate appellee for the \u201csalary of his timber cruiser and truck expense,\u201d and (2) that the court erred in finding there was a \u201cmutual account\u201d between appellee and his father\u2019s business firm. On cross-appeal the appellee contends for reversal that the court erred in not allowing his claim to the extent of the proof offered for a total of $30,217.50. Appellee further urges that appellant\u2019s appeal should be dismissed for failure to comply with Ark. Stat. \u00a7 27-2127.1 which requires that the transcript must be filed within seven months from the date of the entry of the judgment or decree. Since we think the appellee is correct in this latter contention, we first consider this point.\nPending the appeal the appellee filed a motion Avith the clerk of this court to dismiss the appeal for the reason that the transcript Avas not filed Avithin the required statutory period-of time. This motion was controverted by the appellant Avho argued that the transcript AAras filed within the required time and, furthermore, if not filed Avithin that time it Avas due to an unavoidable casualty resulting from an error made by the probate clerk. Pursuant to our per curiam order the Probate Judge proceeded to take evidence to determine the actual date of the filing in the probate clerk\u2019s office of the questioned judgment upon which this appeal is based. Pursuant to this order the trial court has certified to us that:\n\u201c(2) Prom the evidence, it is found that the Judgment in question was 'filed with the Prohate Clerk on some date subsequent to June 27,1962, and not later than July 3, 1962, as shown by the testimony of Mr. Brewer, the clerk, * * *\n(3) This finding is based on the showing that the Velma Catherine Mason and Mary Alice Cargile Order of July 2, 1962, was filed July 3, 1962, and appears of record immediately following the record of the Judgment in question.\u201d\nIn the case at bar it is undisputed that the transcript was filed with the clerk of this court on February 8, 1963. Under the findings of the Probate Judge the transcript should have been lodged not later than February 3, 1963, to comply with Ark. Stat. Ann. \u00a7 27-2127.1 (Repl. 1962). It provides in pertinent part that:\n\u201c* * * the trial court shall not extend the time to a date more than seven [7] months from the date of the entry of the judgment or decree.\u201d\nWe construed the meaning of the words \u201centry of the judgment or decree\u201d in Cranna, Administrator v. Long, 225 Ark. 153, 279 S. W. 2d 828. There we held that if the judgment were not actually entered on the date rendered, then the date of the filing of the judgment with the clerk is the decisive date.\nThe appellant contends, however, that if the transcript was not timely filed it was due to an unavoidable casualty caused by an error of the clerk since the copy of the judgment contained in the transcript has typed thereon that it was filed on the 9th day of July, 1962. It is undisputed that the original judgment on file in the probate clerk\u2019s office does not have any filing date noted thereon. Further, pursuant to our directions the trial court has determined that the judgment was actually filed not later than July 3, 1962.\u201d The certificate of the probate clerk reveals that the entire transcript was completed on January 30, 1963, or in sufficient time to file it before the seven [7] months allowed by statute for the filing of this transcript had expired. In addition, it is undisputed that the appellant and the cross-appellant state in their notices of appeal that they are appealingfrom a judgment \u201centered\u201d on the 27th day of June, 1962. There is no reference in either notice of appeal to any other date concerning the rendition or filing of the judgment in question. In other words, neither of the parties at that time made reference to the judgment actually being filed on July 9, 1962.\nUnder the facts in the case at bar we do not find that the delay in filing the transcript was occasioned by an unavoidable casualty and, therefore, we are impelled to hold that the appeals of the appellant and cross-appellant must be dismissed because the transcript was not filed within the required time. In the instant case the applicable provision of the statute is clear and mandatory. Although we do not reach a discussion of the other points raised by the appellant and the cross appellant is might be said, however, that upon doing so it is possible we could have reached substantially the same result.\nThe appeals are dismissed.",
        "type": "majority",
        "author": "Prank Holt, Associate Justice."
      }
    ],
    "attorneys": [
      "Felver A. Rotoell, Jr., for appellant.",
      "Gordon c\u00a7 Gordon, for appellee."
    ],
    "corrections": "",
    "head_matter": "Pierce v. Pierce.\n5-3012\n377 S. W. 2d 868\nOpinion delivered April 27, 1964.\nFelver A. Rotoell, Jr., for appellant.\nGordon c\u00a7 Gordon, for appellee."
  },
  "file_name": "0046-01",
  "first_page_order": 70,
  "last_page_order": 73
}