dissenting. This is an unusual case raising questions concerning the authority of a chancellor to act after he recuses. The parties were granted a divorce in 1996 by a decree that reserved certain issues relating to property and marital debt for future adjudication. After two subsequent hearings, the chancellor adjudicated the remaining property and debt issues in a letter opinion dated June 3, 1998. By a letter dated August 5, 1998, the chancellor notified the parties that he was recusing, but no order transferring this case to another division or appointing another judge appears in the record. The order memorializing the June 3 letter opinion was entered on August 6, 1998. On August 14, 1998, appellant filed a motion for a new trial. No hearing was conducted and the motion was deemed denied by operation of law after the passage of thirty days. See Ark. R. App. P. — -Civil 4(b). Appellant subsequendy filed a timely notice of appeal.
Appellant contends, inter alia, that it was error to fail to consider his motion for a new trial. I agree. Although a motion for a new trial will be deemed denied by operation of law if the trial court neither grants nor denies the motion within thirty days of its fifing pursuant to Ark. R. App. P. — Civil 4(b), whether or not the motion should be granted is a matter calling for an exercise of discretion on the part of the trial court. See, e.g., Suen v. Greene, 329 Ark. 455, 947 S.W.2d 791 (1997);Lawson v. Lewis, 276 Ark. 7, 631 S.W.2d 611 (1982). In the present case, it appears that no exercise of discretion took place because no judge was assigned to the case at the time the motion for a new trial was under submission. Because there has been a failure to exercise discretion, I would reverse and remand for a chancellor to be appointed, if necessary, and for the chancellor to exercise his discretion on this issue.
I respectfully dissent.
HART, J., joins in this dissent.