Steve Criswell v. Melyssa Holliday

Steve CRISWELL v. Melyssa HOLLIDAY

97-1327                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered December 11, 1997


1.   Civil procedure -- timely filing of notice of appeal -- first
     notice of appeal and first amended notice not timely filed. -- 
     Pursuant to Ark. R. App. P.--Civ. 4(a), a notice of appeal
     shall be filed within thirty days from the entry of the
     judgment, decree or order appealed from; the deadline for
     filing a notice of appeal is not extended by the filing of a
     motion under Ark. R. Civ. P. 60; therefore, the first notice
     of appeal and first amended notice of appeal, filed by
     appellant on August 6 and August 7, 1997, were not timely with
     regard to an appeal from the July 3, 1997 order. 

2.   Motions -- second notice of appeal timely filed -- motion for
     rule on clerk granted. -- Where the second notice of appeal
     filed by appellant on August 29, 1997, was timely with regard
     to an appeal from the August 26, 1997 order, the motion for
     rule on the clerk was granted with regard to appellant's
     appeal from the August 26, 1997 order.


     Motion for Rule on Clerk; granted on appeal of August 26, 1997
order.

     Diana M. Maulding, for appellant.
     No response.

     Per Curiam.
     Steve Criswell, by his attorney, has filed a motion for a rule
on the clerk.
     The Pulaski County Chancery Court entered an order on July 3,
1997, regarding appellant's visitation with the minor child. 
Pursuant to Ark. R. Civ. P. 60, appellant filed a motion to set
aside that order on July 8, 1997.  Before the trial court ruled
upon appellant's motion to set aside, he filed a first notice of
appeal on August 6, 1997, and an amended first notice of appeal on
August 7, 1997. The first notice of appeal and amended first notice
of appeal reflected that appellant was appealing from the July 3,
1997 order.  
     On August 26, 1997, the Pulaski County Chancery Court denied
appellant's motion to set aside the July 3, 1997 order.  Appellant
filed a second notice of appeal on August 29, 1997, which reflected
that he was appealing from the August 26, 1997 order and the July
3, 1997 order.
     Pursuant to Ark. R. App. P.--Civ. 4(a), a notice of appeal
shall be filed within thirty (30) days from the entry of the
judgment, decree or order appealed from.  The deadline for filing
a notice of appeal is not extended by the filing of a motion under
Ark. R. Civ. P. 60.  See, Ark. R. App. P.--Civ. 4(b). Therefore,
the first notice of appeal and first amended notice of appeal,
filed by appellant on August 6 and August 7, 1997, were not timely
with regard to an appeal from the July 3, 1997 order. 
     However, the second notice of appeal filed by appellant on
August 29, 1997, was timely with regard to an appeal from the
August 26, 1997 order.  Smart v. Biggs, 26 Ark. App. 141, 760 S.W.2d 882 (1988).   Notwithstanding the fact that (a) appellant
has not filed a timely appeal from the July 3, 1997 order, and (b)
the July 3, 1997 order is not an "intermediate order" under Ark. R.
App. P.--Civ. 2(b), his timely appeal from the August 26, 1997
order will necessarily involve a review of the trial court's
references to the July 3, 1997 order in the August 26, 1997 order. 
       The motion for rule on the clerk is, therefore, granted with
regard to appellant's appeal from the August 26, 1997 order.