dissenting.
However laudable the end result accomplished by this opinion may be, I cannot agree that the end justifies any means necessary to accomplish it.
The result is that C.R. 73.02(l)(b) no longer requires a poor person to pay the filing fee which is required of all other persons before a notice of appeal may be *406filed. There is nothing whatever in C.R. 73.02(l)(b) which makes an exception for a poor person.
C.R. 73.02(l)(b) provides:
“If an appeal or cross-appeal is from an order or judgment of the circuit court, the filing fee required by Rule 76.-42(2)(a)(i) or (ii) shall be paid to the clerk of the circuit court at the time the notice of appeal or cross-appeal is filed, and the notice shall not be docketed or noted as filed until such payment is made.”
The majority states that because of an amendment to C.R. 73.02(2) it is no longer fatal for a poor person to file a notice of appeal before paying the fee. C.R. 73.-02(2), however, does not mention poor persons, and it does not mention filing fees. It absolutely does not provide for any exceptions to the requirement of C.R. 73.-02(l)(b) that the notice of appeal cannot be docketed or noted as filed until the fee has been paid.
C.R. 73.02(2) provides:
“The failure of a party to file notice of appeal within the time specified in this rule, or to file notice of cross-appeal within the time specified in Rule 74, shall result in a dismissal of the appeal or cross-appeal. The failure of any party to comply with other rules relating to appeals or motions for discretionary review (except Rule 76.20(2)(a)) does not affect the validity of the appeal or motion, but is ground only for such action as the appellate court deems appropriate, which may include:
“(a) A dismissal of the appeal or motion for discretionary review,
“(b) Striking of pleadings, briefs, record or portions thereof.
“(c) Imposition of fines on counsel for failing to comply with these rules of not less than $250 nor more than $500, and
“(d) Such further remedies as are specified in the applicable Rule.
The language of the rule is plain that the failure to timely file a notice of appeal shall result in dismissal of the appeal. The further provision that failure to comply with other rules relating to appeals does not affect the validity of the appeal must, perforce, apply only to rules other than the rule which requires timely filing of the notice.
The question under Rule 73.02(2) is whether the notice of appeal was timely filed. If it was, a violation of other rules relating to appeals will not necessarily result in dismissal of the appeal.
In this case, the notice of appeal was not timely filed. In fact, no notice of appeal was ever filed. True, a notice was tendered to the clerk, but it has not been filed simply because Rule 73.02(l)(b) prevents the filing until the fee has been paid.
We recently construed C.R. 73.02(l)(b) in Manly v. Manly, Ky., 669 S.W.2d 537 (1984). We held:
“Because the notice cannot be filed until the fee has been paid, the failure to timely pay the fee is fatal to the timely filing of the Notice of Appeal.”
Id. at 540.
“It is the holding of this court that the payment of the filing fee for appeals is no longer simply a procedural step in perfecting an appeal. The payment of the filing fee is a condition precedent to the filing of a Notice of Appeal, and until the filing fee has been paid, the Notice of Appeal cannot be filed.” (Emphasis added.)
Id. at 540.
“The act of a clerk in endorsing upon a Notice of Appeal that it is filed and the time and date of filing is a nullity where he is precluded from doing so until he has collected a filing fee which he has not, in fact, collected.” (Emphasis added.)
Id. at 539.
“The result reached here may seem harsh to some. If relief is to be provided, however, it should come about by *407way of a change in the Rule, not from a failure to enforce it.”
Id. at 540.
The majority casually states that Manly v. Manly has no application to a pauper’s appeal without giving any reason why Manly does not apply. In my view, Manly interprets C.R. 73.02(1)(b) as it applies to all appeals, and neither the opinion of the court in Manly nor the express language of C.R. 73.02(l)(b) allows for an exception in the case of poor persons.
Here, as in Manly, the notice of appeal was simply not filed because it cannot be filed without the payment of the filing fee. The ink is scarcely dry on the Manly opinion, yet the majority now holds, without expressly overruling Manly, that a notice of appeal can be filed without the payment of the filing fee. C.R. 73.02(l)(b) which required the result in Manly is still in full force and effect. The majority simply ignores it and refuses to enforce it.
I would welcome the result reached by the majority if the rules of procedure permitted it. As we stated in Manly, the result sounded harsh, but relief should come by way of amendment to the rule, not from the failure to enforce it.
We chose not to amend C.R. 73.02(l)(b) and now, it seems to me, we choose not to enforce it. A rule which is not enforced is worse than no rule at all.
This case is not very meaningful to the parties. Although they won the right to appeal, they lost on the merits and they are no better off than if the appeal had been dismissed for failure to pay the filing fee. It is really no significant victory for poor persons because effective January 1, 1986, C.R. 5.05(4) specifically grants to poor persons the right to file a notice of appeal without payment of the filing fee.
In short, there does not appear to be much reason for the opinion except to proclaim an exception to requirements of C.R. 73.02(l)(b) which, in my view, does not exist.
STEPHENSON, J., joins in this dissent.