Alex Bhatti d/b/a ABCO Builders v. Timothy C. McCabe and Sheryl D. McCabe

Alex BHATTI d/b/a ABCO Builders v. Timothy C.
McCABE and Sheryl D. McCabe

96-964                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
              Opinion delivered September 30, 1996


1.   Appeal & error -- record tendered timely using date and time
     shown by chancery clerk's facsimile machine -- rule on clerk
     granted. -- The Arkansas Rules of Appellate Procedure do not
     provide for facsimile transmission; rather, they provide that
     the clerk of the supreme court shall determine time and dates
     from the file-marks made by the clerk of the trial court;
     applying the appellate rules in the literal sense, petitioner
     tendered the record out of time; using the date and time shown
     by the chancery clerk's facsimile machine, however, the record
     was tendered in a timely manner; under those circumstances,
     the supreme court granted petitioner's motion for rule on the
     clerk.

2.   Appeal & error -- Committee on Civil Practice directed to
     recommend whether appellate rules should be modified regarding
     facsimile transmission. -- The supreme court directed its
     Committee on Civil Practice to make a recommendation on
     whether the Rules of Appellate Procedure should be modified
     regarding facsimile transmission.


     Motion for Rule on Clerk; granted.
     Frank J. Wills, for petitioner.
     William G. Almand, for respondents.

     Per Curiam.
     Petitioner tendered the record in this case and the Clerk of
this court rejected it because, on its face, the record appeared to
be outside the time allotted by our rules.  On March 7, 1996, the
Chancery Court of Pulaski County entered its Amended Order and
Judgment. On March 19, by facsimile, petitioner filed a motion for
reconsideration with the Pulaski County Chancery Court Clerk.  The
Chancery Clerk accepted the facsimile filing pursuant to Ark. Code
Ann.  16-20-109 (Repl. 1994).  The facsimile copy received by the
Chancery Clerk had a date and time received printed upon it by the
Clerk's facsimile machine, and since it already had a time and date
on it, the Chancery Clerk did not separately file-stamp the copy
with a time and date.  
     The Rules of Appellate Procedure do not provide for facsimile
transmission; rather, they provide that the Clerk of this Court
shall determine time and dates from the file-marks made by the
clerk of the trial court.  See Ark. R. App. P. 4 & 5. 
Consequently, applying the Rules of Appellate Procedure in the
literal sense, petitioner tendered the record out of time. 
However, if the date and time shown by the Chancery Clerk's
facsimile machine are used, the record was tendered in a timely
manner.  Under these circumstances, we grant the Rule on the Clerk. 
     By this per curiam, we ask our Committee on Civil Practice to
make a recommendation on whether our Rules of Appellate Procedure
should be modified.