dissenting. The majority of this court has dismissed the appeal of this case because the notice of appeal was filed on the same day appellant’s motion for new trial was deemed denied. I dissent.
Rule 4 of our Rules of Appellate Procedure provides in section (a) that, except as otherwise provided in subsequent sections of the rule, a notice of appeal must be filed “within thirty days” from the entry of the judgment, decree, or order appealed from, and section (c) provides that, if certain motions are filed, the time of appeal shall run from the entry of the order granting or denying the motion — or if the motion is not granted or denied within thirty days of filing, “the motion will be deemed denied as of the 30th day.” It goes on to say that a notice of appeal filed “prior to the expiration of the 30-day period shall have no effect” and that “a new notice of appeal must be filed within the prescribed time measured . . . from the expiration of the 30-day period.” Section (d) of Rule 4 states that upon disposition of a motion listed in section (b), any party desiring to appeal “shall have thirty days from . . . the expiration of the 30-day period provided in section (c) of this rule within which to give notice of appeal.”
Looking back at the above provisions, we see that notice of appeal must be filed “within thirty days,” or “within the prescribed time . . . from the expiration of the 30-day period” and that a party “shall have thirty days from” the expiration of the 30-day period.
Rule 4 simply does not provide that a notice of appeal filed on the “day of’ is not “within” or “from the expiration of.” Cases cited by the appellant hold that a notice of appeal filed on the day that triggers the start of the 30-day period is within that period. See Edmonds v. State, 282 Ark. 79, 665 S.W.2d 882 (1984) (notice of appeal must be filed “within 30 days from” certain events.) And appellant cites a case where we said “since the trial court did not act on appellant’s motion within thirty days, it was deemed denied as of the thirtieth day, or May 10, 1990. . . . Consequently . . . notice of appeal filed before May 10 . . . would be untimely under Rule 4(c).” (Emphasis added.) Phillips Construction Co. v. Cook, 34 Ark. App. 224, 226, 808 S.W.2d 792 (1991).
The majority opinion relies upon Kelly v. Kelly, 310 Ark. 244, 247, 835 S.W.2d 869 (1992), but that case simply holds that a notice of appeal filed prior to the date of disposition of the post-trial motion is no longer effective under the present language of Appellate Procedure Rule 4. However, that is not the point in the instant case. Here, the notice of appeal was filed on the same day the post-trial motion was deemed denied. We said in Phillips Construction Co. v. Cook, supra, that a notice of appeal filed before the disposition of the post-trial motion is ineffective, and Kelly v. Kelly, supra, said a notice of appeal filed prior to the disposition of the post-trial motion is ineffective. However, neither case said that a notice of appeal filed on the same day of the disposition of the post-trial motion is ineffective.
I would construe Rule 4 liberally and allow this appeal. I do not believe the Arkansas Supreme Court has, or will, do otherwise. Therefore, I dissent from the dismissal of this appeal.