(dissenting). The majority opinion is most alarming. It says that in Act 555 of 1953 the Legislature took up the entire subject matter of appellate procedure in civil cases, and substituted Act 555 for all such provisions previously existing. Here are two statements in the majority opinion which indicate the extent of the holding:
(1) “ By this Act the Legislature effected a complete revision of the law governing appellate procedure in civil suits.”
(2) “As we have indicated, we are construing Act 555 as a complete revision of the law in this particular field ...”
If the majority holding be as I understand it, then the savings clause for minors and insane persons in § 27-2106 Ark. Stats, is abolished, and various other provisions are abolished. I cannot agree with the majority opinion: hence this dissent.
That Act 555 is taken from some of the Federal rules is true; but at most Act 555 is a patchwork of only some of the Federal rules. Below I give in parallel columns: (a) each section of Act 555 numbered seriatim; and (b) the number of the Federal rule from which each such section was copied or modeled:
1 There are several instances of material modification, but this table serves as a ready reference for comparative purposes.
Number of Federal Rule Section No. from which such section of Act 555 was copied or modified.
1 .......................................................................................... 74
2 .......................................................................................... 73 (a)
3 ........................................................... 73 (b)
4 .......................................................................................... 73 (c)
5 .......................................................................................... 73 (d)
6 ......................................................................................... 73 (e)
7 .......................................................................................... 73 (f)
8 .......................................................................................... 75 (a)
9 ......................................................................................... 75 (b)
10 .......................................................................................... 75 (c)
11 .......................................................................................... 75 (dj
12 .......................................................................................... 75 (e)
13 .......................................................................................... 75 (f)
14 .......................................................................................... 75 (g)
15 .......................................................................................... 75 (h)
16 .......................................................................................... 75 (i)
17 .......................................................................................... 75 (j)
18 .......................................................................................... 75 (k)
19 .......................................................................................... 75 (n)
20 .......................................................................................... 73 (g)
21 .......................................................................................... 46
The foregoing table shows that in Act 555 only Federal rules 46, 73, 74 and 75 were concerned. One of the dangers in adopting some part of a law from another jurisdiction is that the portion selected is all too frequently interwoven with, other portions that precede and follow the particular part, and these “other portions” are not found in our Statutes. Another danger in accepting a law from some other jurisdiction is the fact that frequently the law adopted does not fit into our existing law, and yet the new law contains no express repealing clause. Both of these dangers are exemplified in Act 555.2 By that Act the Legislature selected portions of four of the Federal rules on civil procedure. Since there are eighty-six of these Federal rules, it is very easy to see that selecting four out of eighty-six leaves much to be desired as regards a complete set of rules. Again, Act 555 contains no express repealing clause; and it is therefore difficult to tell just which of our previously existing Statutes are repealed by implication and which are left in force. The result is to add confusion in the matter of appellate procedure, whereas we had a fairly well understood system before the adoption of Act 555. The desire to “be like the Federal system” is certainly at variance with the idea of our founding fathers, who thought that each State would retain its individuality.
When Act 555 was adopted, this Court issued a rule, under date of June 8, 1953, by which appeals might be taken either under Act 555 of 1953 or under the earlier Statutes.3 In other words, we then construed Act 555 as being an alternative method of appeal. Those who wanted “to be like the Federal system” could-take their appeal by Act 555; and those who wanted to ‘ ‘ continue in the good, old-fashioned way” could ignore Act 555. This rule of June 8,1953, seemed to me most sensible; and under it no one could have been hurt and litigants would not have lost their rights because some attorney failed to understand the full effect of the changed law. Particularly did I favor this alternative procedure, since Act 555 had no express repealing clause. We already had two statutes regarding appeals to the Supreme Court 4 that is, an appeal could be prayed out of the Trial Court and prosecuted in 90 days ;5 or an appeal could be prayed out of the Supreme Court within six months from the date of judgment.6 I took the view that Act 555 was only an additional method of appeal. That view prevailed from June 8,1953, until January 10, 1954, when a revised publication of Buies of the Supreme Court contained Buie 26, which reads:
“Effective Date of Buies. These rules shall become effective on January 10,1954, but this shall not affect any proper action taken before these rules became effective. The court’s order of June 8,1953, by which appeals might be taken either under Act 555 of 1953 or under the earlier statutes, is rescinded, with respect to all judgments or decrees entered after January 10, 1954.”
So on all judgments and decrees entered after January 10, 1954, litigants who desire to appeal must pursue the course prescribed by Act 555. And what is that course ? At most I had thought that Act 555 merely operated to impliedly repeal those sections of the pre-existing law with which it was in direct conflict; and that all other sections of the pre-existing law were left unaffected. But not so! In the present case, the majority says that in Act 555 the Legislature took up the entire subject matter of appellate procedure in civil cases and substituted Act 555 for every provision previously existing.
To indicate the effect of such holding, let us turn to Arkansas Statutes and see some of the sections that are thus repealed. Sections 27-2101 to 27-2156 of Ark. Stats, are listed under the headings “Appeals to the Supreme Court.” If the majority means what it says, then all of these sections — from 27-2101 to 27-2156, inclusive — are repealed by said Act 555. One of these sections is § 27-2106, which says in part: ,
“An appeal or writ of error in a civil case shall not be granted, except within six months next after the rendition of the judgment order or decree sought to be reviewed, unless the party applying therefor was an infant, or of unsound mind at the time of its rendition, in which cases an appeal or writ of error may be granted to such parties, or their legal representatives, within six months after the removal of their disabilities or death . . . ” (Italics our own.)7
I find no provision in Act 555 which contains any savings clause for minors or insane persons, so when the majority says that Act 555 takes the place of all the previous law on appellate procedure in civil cases, then the majority is. certainly saying that this § 27-2106 is repealed by Act 555. I submit that by so holding, the majority is obliterating “by one fell swoop” all the law on a savings clause for minors and insane persons, insofar as concerns appeals in civil cases.8 I cannot believe that the Legislature of 1953 so intended; and because of this point, if for no other, I must dissent from the present holding of the majority.
Furthermore, if the majority means what it says about Act 555 constituting a “complete revision of the law governing appellate procedure in civil suits, ’ ’ then I ask these questions:
(a) If § 27-2131 is repealed by Act 555, where is there any law left to take care of the situation when the appellant dies pending appeal?
(b) If § 27-2132 is repealed, where is there left any law to take care of the situation where appellee dies pending appeal ?
(c) If § 21-2130 is repealed, where is there left any law for the bringing of original papers?9
(d) If § 27-2142 and subsequent sections under the heading in the Digest, “Appeals to the Supreme Court,” are repealed, then under what authority does the Court make rules, as provided in § 27-2142?
Surely the majority cannot mean that all these last numbered sections have been repealed; yet where is the line to be drawn ? I submit it would be far better to hold that § 27-2137 on cross appeals to be granted by this Court had not been repealed by Act 555, than it is to hold — as the majority is now doing — that Act 555 has repealed all the previous law on appellate procedure in civil cases.
I maintain that Act 555 is not a complete and full revision ,of all of our law on appellate procedure in civil cases. Furthermore, I maintain that to hold that Act 555 is a complete repeal of all such laws, is to leave the Bar of Arkansas in absolute confusion on any questions, and is to wipe out all savings clauses for minors and insane persons in appeals in civil cases. How much better it would be for the majority to now hold that this Court can always grant a cross-appeal to an appellee! In the case at bar, the record shows that the General Box Company designated the record that it wanted brought to this Court. All the appellee wants us to do is to allow him to cross-appeal on the record that the General Box Company has designated. I cannot see why § 27-2137 should not be followed. At all events, I submit that the majority has assigned a reason for its opinion that will come back to plague us; and I respectfully dissent from the majority holding.
Our earliest compilation of Statutes was the Revised Statutes of 1838, adopted shortly after Statehood. Albert Pike, the great Mason, wrote the preface to that volume; and pointed out most vividly the evils of constantly changing existing laws and remedies. Here are typical sentences from Pike’s preface: “Change and innovation in the law is generally a great evil, and every alteration in existing Statutes should be made slowly, cautiously, and with due deliberation.” And again, Albert Pike said in his preface: “Crude and incongruous laws, hatched in prolific brains, and passed in haste and without consideration, load our Statute books, confuse people, lawyers and judges, create litigation and unsettle civil rights. Too much legislation is truly a curse. Hardly has the construction of one law been finally settled by the Supreme Court, at an expense to the litigants of thousands often, before another takes its place, more ambiguous in terms, and needing new adjudication before it can become a safe rule of action.”
This rule read: “The Court expects, within the near future, to revise its rules with a view of harmonization with Act 555 of 1953. Pending that action, the Court under its inherent rule-making power, authorizes litigants (at their option)' to proceed under Act 555 or under the earlier Statutes — which by reference are hereby adopted as temporary rules of the Court — -and the present rules of the Court.”
This does not include § 27-2102 on time for appeal in injunction cases.
See § 27-2127 Ark. Stats.
See § 27-2106 Ark. Stats.
Act 213 of 1951 added a proviso to this section regarding method of extending time for transcript. It is not germane to the point here considered.
This matter was discussed at the Legal Institute held in November. 1953. See 8 Ark. Law Review. page 5.
Federal Rule 75 (o) has such a provision, but our Act 555 has not.