I cannot subscribe to the majority opinion in this case because I do not think it treats the question at issue. The question, as I see it, does not turn upon the time when appellants received notice of the order of the Alcoholic Beverage Control Board. The real issue is whether the time for giving notice of appeal runs from the date the board announced its order or from the time the written order was filed.
As I understand the record, appellants filed their appeal from action taken by the board on December 4, 1974. They did not make By-Pass Beverage Company a party. The written order of the board was not made until January 28, 1975. On January 29, motion to dismiss the appeal for failure to make By-Pass Beverage Company a party was filed. On February 6, 1975, appellants amended their petition filed December 4, 1974, to make this company a party to the appeal. There was a second amendment filed February 19, 1975. The motions to dismiss were renewed. The circuit court treated the matter thus:
On January 29, 1975, Separate Motions to dismiss were filed by Peter G. Estes and the members of the Board to which were attached November 20, 1974, Order of the Board and copies of existing Permit No. 697 and No. 2965 showing permittee to be “By-Pass Beverage Co., Manager Agent: Peter G. Estes, Sr., 231 Mill Street, dated October 10, 1974, and October 24, 1974, respectively.”
The motions of defendants contended that the real party involved By-Pass Beverage Co., a corporation, was not named or served by Petitioners and that Peter G. Estes, Sr. was served by an individual improperly and that the time for appeal of 30 days from November 20, 1974, Order had expired on December 20, 1974.
On February 6, 1975, Petitioners filed 1st Amendment to Petition to include “By-Pass Beverage Co., a corporation” as a defendant with Peter G. Estes, Sr.
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By-Pass Beverage Co., a corporation, was a necessary party to any appeal from the November 20, 1974, order and failure to name an indispensable party as defendant within 30 days makes the attempted appeal void and allows the November 20, 1974, order to become effective as of December 20, 1974, the expiration of 30 days.
The Motions for Summary Judgment filed February 19, 1975, by Petitioners is denied for failure to properly perfect an appeal within 30 days of and from November 20, 1974.
Later, on motion to vacate the order dismissing the appeal, the circuit court, in effect, confirmed its previous action, emphasizing the notice factor. I maintain that notice prior to the making of the written order is insignificant.
It does not appear to me that either Ark. Stat. Ann. § 48-1314 or § 48-1316 (Repl. 1964) governs an appeal by protesters. The action of the board seems to me to be equivalent to the granting of a license. The statute (§ 48-1316) only fixes the time for appeal by a licensee. It provides:
Within thirty (30) days after the mailing of the order of the Board, the licensee, if dissatisfied with the decision of the Board, may appeal to the Circuit Court of Pulaski County. The appeal shall be taken by the filing with the Clerk of the Circuit Court a transcript of the proceedings before the Board. The Circuit Court shall hear no new evidence on this appeal and shall render its judgment only on errors of law. An appeal from the judgment of the Circuit Court may be taken to the Supreme Court of Arkansas. [Acts 1951, No. 159, § 17, p. 331.]
If the time for appeal by a protestant is fixed by this section, then it is by analogy, i.e., that a protester should have the same time for appeal as the licensee. But this section does not permit evidence outside the record before the board to be introduced on appeal.
Appellant, however, relies upon the Arkansas Administrative Procedure Act, Ark. Stat. Ann. § 5-701 et seq (Supp. 1975). The Alcoholic Beverage Control Board is governed by that act. The act requires that proceedings for review be by petition in the circuit court. It must be filed “within 30 days after service upon petitioner of the agency’s final decision.” Ark. Stat. Ann. § 5-713 (Supp. 1975). This section permits testimony in the circuit court where, as here, irregularities in procedure not reflected in the record before the board are alleged.
It seems to me that every step taken by appellants was in conformity with § 5-713 and not in conformity with § 48-1316. It is crystal clear, however, that the 30 days allowed for appeal under § 48-1316 does not being to run until the mailing of the order of the board and under § 5-713 until the service upon the petitioner of the agency’s final decision.
Even the Utah decision relied upon by the majority does not apply here. No appeal was taken as to By-Pass Beverage Company by the filing of the original petition. In the Utah case the only party involved in the case was the party moving to dismiss. Even if it did apply, it is not in harmony with our own decisions.
Be that as it may, I think the amendment to the petition making By-Pass Beverage Company a party to the appeal was timely, because it was well within 30 days of the time that the order was signed, regardless of when or whether it was served.
Under our former statute allowing six months from the rendition (rather than entry) of a decree for appeal, we held that the time for appeal was not set in motion when the trial court made and submitted to counsel findings, concluding with this statement: “A decree in accordance with these findings will be signed by the Court when prepared and presented.” Obviously, all parties had notice of these findings and their effect. But we held that the time for appeal did not start running until two weeks later when the decree was signed. Bolls v. Craig, 220 Ark. 880, 251 S.W. 2d 482. When the same statute was applicable, we held that the time for appeal did not commence to run until a sufficient written memorandum showing final disposition of the case had been made, even though the court’s finding had been clearly made. Poe v. Walker, 183 Ark. 659, 37 S.W. 2d 866. The same principle was applied to a statute with a 30-day limitation. Donley v. State, 226 Ark. 49, 287 S.W. 2d 886.
After the present statute governing appeals to this court was passed, the approach taken was not materially changed. The only real change was statutory, i.e., the time for giving notice was set at 30 days and the time began to run, not from the rendition of the judgment, but from its entry. Cranna v. Long, 225 Ark. 153, 279 S.W. 2d 828. We held that this did not mean that a notice of appeal filed before entry of the judgment was void, but said that we did not mean to shorten the time within which a notice of appeal could be filed after the entry of the judgment. Wilhelm v. McLaughlin, 228 Ark. 582, 309 S.W. 2d 203.
In Wilhelm we quoted with approval from Hays v. Dennis, 11 Wash. 360, 36 P. 658. The quotation included this language:
*** The statutes governing appeals should be liberally construed, to the end that parties may have a review by this court of the rulings of the superior courts when they so desire. ***
We have also held that in no event will a litigant’s time for filing notice of appeal to this court be less than 30 days after the entry of the judgment, Zunamon v. Stevenson, 247 Ark. 248, 445 S.W. 2d 102.
As I see it, a waiver, if there was one as to Estes, would not be a waiver as to By-Pass Beverage Company. An appeal as to Estes would not bar a subsequent timely appeal as to By-Pass Beverage Company. If we follow the rule of the majority opinion on appeals to this court we would have an intolerable situation. For example:
A judgment is rendered which is favorable to A and B. C, the losing party, files a notice of appeal insofar as the judgment in favor of A is concerned, without waiting for entry of the judgment. Although fully aware of the findings and judgment in favor of B, C does not file notice of appeal as to B until sometime more than 30 days after his first notice of appeal, but does file it within 30 days after the judgment is entered. We should have to hold that the appeal as to B was not timely. C, having full knowledge of the court’s findings and conclusions when he filed the first notice, had waived the entry of the judgment so his notice as to B was not timely, and timely notice being jurisdictional, the appeal as to B would have to be dismissed. We shouldn’t.
This 30-day limitation is a short one. We should view it liberally in favor of the right of review. We recognized in Wilhelm that a party might have valid reasons for taking the precaütion of acting before the time limitation began to run. We should be extremely reluctant to hold that by doing so, he waived any rights, or lost any that he would otherwise have.
I am authorized to state that Mr. Justice George Rose Smith joins in this opinion.