dissenting.
Respectfully I dissent. The issue before us is not a matter of jurisdiction, but only of procedure. Jurisdiction derives from the Judicial Article of the Kentucky Constitution, Sec. 109-124. The rule in question is a court made rule pursuant to the Kentucky Constitution, Section 116:
“The Supreme Court shall have the power to prescribe rules governing its appellate jurisdiction ... and rules of practice and procedure for the Court of Justice.”
We prescribe the rules and we interpret the rules. We decide whether and when to require strict compliance. We must accept the responsibility for the decision.
Shall every violation result in dismissal, no matter how inconsequential? The Court of Appeals felt constrained to follow this Draconian logic, no doubt impelled by the mandate of this Court as expressed in Foremost Ins. Co. v. Shepard, Ky., 588 S.W.2d 468 (1979).
But the “policy of strict compliance with rules of procedure regarding appeals” announced in Foremost has led us to a point where appellate practice has become a procedural nightmare for the litigant.
We should not treat a rule directing payment of a fee as a jurisdictional threshold. CR 73.02(l)(b) should be considered nothing more than an order to the Clerk of the Circuit Court to see to it that the filing fee scheduled in CR 76.42(2) is paid at the time the notice of appeal or cross-appeal is filed. Certainly in the circumstances of this case the language of the rule is not so clearly to the contrary that an appellant’s lawyer would necessarily anticipate that an appeal would be dismissed. We should not turn a system that was designed to promote efficiency into a trap for the unwary.
In Ritchie v. Mann, Ky., 500 S.W.2d 62 (1973), the Clerk accepted a complaint filed in an election contest, marked it filed and issued a summons, even though the $35 filing fee required by statute was not paid in advance. We held:
“This court has held that the clerk may refuse to file a complaint without pay*541ment of the fee, (case cited) but has never held that he cannot file it or that a filing without payment is ineffective.” 500 S.W.2d at 64.
I see no distinction in the logic behind the decision in Ritchie and the present case.
In the present ease the rule says the clerk shall not docket the appeal nor note it as filed until payment is made, but the local practice permitted otherwise. No prejudice resulted to the appellee from late payment. The motion to dismiss the appeal was based on discovering a technical error, nothing more. In such circumstances dismissal as the only alternative is arbitrary. Where there is no prejudice to the adverse party, other sanctions, or no sanctions, may be more appropriate.
There are policy considerations that mandate strict compliance with certain rules such as timely filing of the notice of appeal. On the other hand, although the clerk should demand payment of the filing fee before permitting the notice of appeal to be filed, no policy considerations exist for holding the time of payment of a filing fee to be a jurisdictional prerequisite.
The Honorable James B. Stephenson, Justice, dissenting in Foremost, supra, wrote “it is my opinion that we should abandon the rigid policy of strict compliance, as announced in the majority opinion, in favor of a policy of substantial compliance where the defect does not mislead or prejudice the opposing party.” He quoted Foman v. Davis, Executrix, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) as follows:
“The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.” 371 U.S. at 181-82, 83 S.Ct. at 230.
The time has come to move towards a balanced interpretation of appellate rules, respecting both form and substance, rather than adhering rigidly to form at the expense of substance.
I would reverse the Court of Appeals and direct that the present appeal be decided on the merits.