dissenting. I disagree with the majority on the appeal and cross-appeal. If we affirm on appeal we should reverse on cross-appeal because the amount awarded was exactly the same amount the appellee offered to take prior to trial.
It is undisputed that the appellant filed a timely removal action and gave actual notice to the appellee’s attorney. The appellant furnished adequate proof that it promptly mailed the removal papers to the state court. Not one person has been misled by the failure to file the removal papers in the state court. In truth, the facts support the theory that the state court failed to properly file the removal papers as strongly as they do the theory that the appellant’s lawyer failed to mail them. A logical conclusion is that the postal service lost them.
A common sense approach to this problem is to allow the time the case is pending in federal court to suspend the running of time within which to file in the state court. Upon remand to the state court time should commence where it left off. If the case had not been remanded, the answer would never have been required to be filed in the state court. Obviously the federal court was looking for an excuse to remand when it discovered that the removal papers had not been filed in the state court. Placing form over substance does not further justice in this case.
In spite of the failure by the appellant to see that the removal papers were placed in the correct file in the state court, we could still grant relief and do justice by applying the “other just cause” provision of ARCP, Rule 55(c). That’s exactly what we did in Tapp v. Fowler, 291 Ark. 309, 724 S.W.2d 176 (1987), where we reaffirmed our holding in Cammack v. Chalmers, 284 Ark. 161, 680 S.W.2d 689 (1984), allowing a late answer to be filed. We stated: “To hold on the facts before us that the appellant failed to appear or otherwise defend appellee’s action would defy common sense, and, at a minimum, place form over substance.” We reversed and remanded with directions to set aside the default judgment.
Our procedures allow pleadings to be mailed to the courts, and allows extra time when the mail service is utilized. See ARCP Rule 6(d). A statement by an attorney that he has correctly addressed and mailed a pleading with proper postage is evidence that he has complied with this rule. Attorneys are not insurers or guarantors of delivery of the United States mail. Sometimes we strain at a gnat and swallow a camel. The court just did.
I would have the default judgment vacated and order the case tried on its merits.