dissenting. The trial judge gave a reason for his decision which I believe was erroneous. The statute providing time limits on notice of appeal after a motion to vacate unequivocally states that the expiration of a “term of court” is irrelevant. Ark. Stat. Ann. § 27-2106.4 (Repl. 1979).
The appellant contends the trial court set the hearing on the motion to vacate within 30 days of the day it was filed. The appellee contends it was not set until 41 days after it was filed. Neither party asserts whether within the 30 day period after it was filed the appellant sought its disposition as required by the statute. We are left without knowledge why the trial judge set the hearing for April 3, 1979.
I could concur in the result reached by the majority if the trial judge had denied the motion for failure to pursue it in accordance with the statutory requirement. But as he did not, and as we do not know the extent to which the appellant pursued her motion, I believe we should give the trial judge an opportunity to focus on the correct issue. It may be that the trial judge would be able to say the appellant did or did not ask that the motion be set for hearing within 30 days of its filing. If she did ask, then she had ten days from the denial of her motion to file her notice of appeal. Ark. Stat. Ann. § 27-2106.5 (Repl. 1979). .
While I agree with the majority’s passing remark about the probable, although not inevitable, final result of this litigation, I cannot help but conclude a litigant must not be denied relief, such as an appeal might provide, on the basis of a technical failure unless we are sure such a failure has occurred or that the litigant has failed to carry her burden of showing no such failure. Here, we cannot say either of those, because the trail court ignored the applicable statute and thus failed to consider whether the appellant had pursued her motion as required by the statute.
I am also very reluctant to concur in that part of the opinion citing Jones v. Benton County Circuit Court, 260 Ark. 893, 545 S.W. 2d 621 (1977), as the opinion in that case seems to be based on expiration of “term time” despite the clear wording of the statute, as explained above. This case seems to give some support to the action of the trial judge in the case before us now. And yet it purports to apply the provisions of Ark. Stat. Ann. § 27-2106.4 (Repl. 1979). Just as in the case before us, the application of the “term time” rule was without explanation or reference to the statute which makes it inapplicable. I find the case just as mysterious as the action of the judge here, but regardless of that, I believe we should not say the appellant has not complied with the statute until we have some evidence one way or the other.
I would reverse and remand for a determination whether the appellant did or did not comply with the provisions of the statute.
Judge Howard joins in this dissent.