#### Albert and Ruby MITCHELL v. CITY OF MOUNTAIN VIEW

91-9

803 S.W.2d 556

Supreme Court of Arkansas

Opinion delivered February 18, 1991.

Appellant, pro se.

Jeff Dobbins, for appellee.

Per Curiam.

The City of Mountain View (City) has moved to dismiss the appeal of Albert and Ruby Mitchell because the time for filing the record on appeal has expired. Notice of appeal was filed on September 19, 1990, and the Mitchells have neither *586filed the record with the Clerk nor responded to the motion to dismiss the appeal.

Ark. R. App. P. 5(a) provides that, “[t]he record on appeal shall be filed with the clerk of the Arkansas Supreme Court and docketed therein within 90 days from the filing of the first notice of appeal, unless the time is extended by order of the trial court as hereinafter provided. . . .” The Mitchells have not filed a request for an extension in which to file the record and none has been granted. Consequently, the Mitchells are procedurally precluded from pursuing their appeal, and the City’s motion to dismiss the appeal must be granted.

This procedure is unusual in that no appeal is pending in this court and were the Mitchells to attempt to perfect an appeal the record would be refused by the Clerk as untimely. However, since the trial court has no power to dismiss an appeal [except as provided in Ark. R. App. P. 3(b)], Johnson v. Carpenter, 290 Ark. 255, 718 S.W.2d 434 (1986), there is some uncertainty as to how a stale appeal may be dismissed. We think the procedure followed by the City in this case is proper, that is, if the time for appeal has expired and the prevailing party prefers to formalize that fact without waiting for seven months to elapse, such party may file with the Clerk a partial record and move for a dismissal. Where the partial record demonstrates that the appeal is barred that motion will be granted.

The City also requests that it be reimbursed for its costs. We grant that motion, pointing out that if a would-be appellant, after filing notice of appeal, permits- the appeal to become stale, it can avoid incurring further costs by seeking a dismissal in the trial court pursuant to Ark. R. App. P. Rule 3(b).

Motion for dismissal of appeal and recovery of costs granted.