This case has not yet been submitted for decision on the merits. The appellant has filed a motion asking that the appellee’s cross-appeal be dismissed, for the reason that the appellee failed to file a notice of appeal within thirty days after the entry of the decree below. The appellee contends that his cross-appeal was properly taken; but he asks that, if this contention be overruled, a cross-appeal be granted by this court.
The appellant brought this suit to recover income taxes paid under protest. In his answer and cross-complaint the appellee opposed the claim for refund and asserted that additional taxes were owed. By a decree entered on January 18, 1954, the chancellor dismissed both the complaint and the cross-complaint for want of equity. The decree recites that the plaintiff prays and is granted an appeal and that the defendant prays and is granted a cross-appeal. The appellant filed its notice of appeal on February 15, but the appellee did not file a notice of appeal.
Since the decree was entered after January 10, 1954, the case is governed by Act 555 of 1953. Supreme Court Rule 26; Norfleet v. Norfleet, 223 Ark. 751, 268 S. W. 2d 387. Inasmuch as the appellant’s motion presents important questions concerning the construction of Act 555, we have thought it better to dispose of the motion by an opinion than by a per curiam order.
Act 555 is a comprehensive statute governing the time for taking appeals in civil cases, the method of taking such appeals, the manner in which the record is to be prepared, and various related matters. The question now before us is to what extent Act 555 has repealed by implication earlier statutes relating to cross-appeals. There are two familiar rules that are helpful in determining whether a repeal by implication has occurred. ‘£ One is that, where the provisions of two statutes are in irreconcilable conflict with each other, there is an implied repeal by the later one which governs the subject so far as relates to the conflicting provisions, and to that extent only. . . . The other one is that a repeal by implication is accomplished where the Legislature takes up the whole subject anew and covers the entire ground of the subject-matter of a former statute and evidently intends it as a substitute, although there may be in the old law provisions not embraced in the new.” Babb v. El Dorado, 170 Ark. 10, 278 S. W. 649.
Act 555 plainly falls within the scope of the latter rule. By this Act the legislature effected a complete revision of the law governing appellate procedure in civil suits. Hence the fact that earlier statutes empowered the trial court to grant a cross-appeal is not controlling; we must look to Act 555 alone for the procedure now to be followed.
We have not the slightest doubt that under Act 555 the filing of a notice of appeal within the time allowed is a jurisdictional prerequisite to the perfection of a cross-appeal. Section 2 of the Act (Ark. Stats., 1947, § 27-2106.1) provides that “any party” to the action may appeal by filing a notice of appeal within thirty days from the entry of the judgment or decree. Section 8 (§ 27-2127.2) states that if the appellee files the original designation of the record (which he would hardly do unless he too were appealing), the parties shall proceed as if the appellee were the appellant. It seems clear that the appellee would not become the appellant without having filed a notice of appeal. Section 18 (§ 27-2127.10) requires that a single record be used when more than one appeal is taken from the same judgment or decree. Nowhere in the Act is there the slightest indication that the appellee may take his appeal in a different manner from that prescribed for the appellant. In the federal courts, whose rules were used as a guide in the drafting of Act 555, an appellee who desires to cross-appeal must proceed in the same manner as an appellant. Cyclopedia of Federal Procedure (3rd Ed.), § 60.82.
Here the appellee did not file a notice of appeal, but the decree does recite that he prayed and was granted a cross-appeal. We do not think that this recital constitutes a substantial compliance with the requirement that a notice of appeal be filed. The theory of the former practice was that the trial court actually granted the appeal, even though it was á matter of right, and consequently the court’s action was appropriately embodied in its decree. But the theory of legislation such as Act 555 is that the aggrieved litigant himself takes the appeal, simply by filing the required notice with the clerk. The decree represents the action of the court, not that of the litigant, and it is just as inappropriate for the court to give notice of appeal as it would be for that tribunal to designate the contents of the record, to specify the points to be relied upon, etc. Indeed, if it were not for the fact that in the past the appeal has properly and customarily been granted by the court’s decree, we do not suppose that any one would seriously contend that Act 555 contemplates or authorizes that procedure. As we have indicated, we are construing Act 555 as a complete revision of the law in this particular field, and when we confine our study to the Act itself we discern no reasonable basis for saying that the recital in this decree substantially complies with the mandatory requirement that notice of appeal be filed with the clerk of the trial court.
What we have already said pretty well disposes of the appellee’s request that this court grant his cross-appeal. That request is bottomed upon the former statute authorizing us to allow a cross-appeal at any time before the case is submitted. Ark. Stats., § 27-2137. It is evident that this statute was superseded when the legislature took up the subject anew and enacted a comprehensive law that was intended to be a substitute for preexisting statutes relating to appeals and cross-appeals.
As a matter of fact, there is no longer any need for this court to have the power to grant a delayed cross-appeal. By the former practice the trial court could grant both the appeal and the cross-appeal, and if the record were lodged in this court within ninety days both appeals would be heard. But the appellant could, if he chose, delay the filing of the record until the last day of the six months then allowed, thereby permitting the appeals granted by the trial court to lapse. By then obtaining his direct appeal in this court at the eleventh hour the appellant might have circumvented the cross-appeal had we not been empowered to grant it after the expiration of the six months allowed for the direct appeal. Act 555 eliminates this difficulty, as the whole matter is now concentrated in the trial court. It is now a simple matter for a litigant who is substantially but not completely satisfied with the judgment to file a notice of appeal as a precautionary measure. If his opponent eventually takes the case to this court the notice protects the cross-appeal; otherwise it may be abandoned or dismissed in the trial court under § 2 of Act 555. In no event is there any real reason, as there was before, for this court to grant the cross-appeal.
The cross-appeal allowed by the decree below is dismissed ; the prayer that a cross-appeal be granted by this court is denied.