concurring.
I agree that the record was timely filed in this case, but differ with the majority opinion as to how or when this was accomplished. In my view, the evidence, in the form of an affidavit from the clerk, supports the conclusion that the Circuit/County Clerk filed the record in this case on February 8, 2006, rather than by certifying the docket sheet on February 6, as the majority concludes. The clerk stated that, as was his usual and customary procedure, he “filed the certified copy of the County Court record at about the same time” as he filed the notice of appeal and designation of the record. (Emphasis added.) The latter was accomplished at 1:29 p.m. on February 8, 2006.
As an initial matter, I disagree with the majority that the docket sheet was the “record” in this case. For this proposition, the majority cites McNabb v. State, 367 Ark. 93, 238 S.W.3d 119 (2006), which involved a district court appeal, rather than an appeal from county court. The docket sheet in the only document in the record, and the McNabb court took pains to point this out. 367 Ark. at 100, 238 S.W.3d at 124 (stating that the district court docket sheet “contained all of the information relating to the district court proceedings” that the “usual record” in district court “is the docket sheet ... [b]ut ... the record of proceedings must reflect all the proceedings, including all filed documents and motions, before the district court.”) Because no other documents in McNabb were marked |12as ever having been filed with the court, the docket sheet in that case was the only “record.” McNabb did not hold that the docket sheet was the record in all cases. See also Reporter’s Notes to former District Court Rule 9 (stating that “[t]he contents of the record need not be extensive for an appeal” but “[a]s as minimum ... should reflect the claim form, the written answer or response, if any, the judgment of the court and any other writing or documents filed in the inferior court or offered in evidence”).
My primary disagreement with the majority opinion, however, is with its conclusion that the appeal was perfected in this case when the docket sheet was “lodged in the circuit clerk’s office on February 6, 2006, as evidenced by the certification, which contains that date.” Certification is not the same as filing, and the previous version of Rule 9 specified that the record had to be filed with the circuit court within thirty days from the date of the entry of judgment. Here, counsel for the Game and Fish Commission faxed the clerk a letter on February 6, 2006, asking for the “preparation and certification” of the record. That preparation and “certification” of the record was accomplished on February 6, when the clerk stamped the second page of the docket sheet (the first document in the record), as having been “certified.”5 Counsel did not ask the clerk to “file” the record in the February 6 letter. Counsel for the Commission sent another letter dated February 7, 2006, by overnight delivery and asked in this letter for the clerk to “please file the original Notice of Appeal and | ^Designation of the Record along with the Certified Record of the County Court case in the Newton County Circuit Court.” (Emphasis added.) Extra copies of the notice of appeal were included for file-marking, but no request was made to return any proof of file-marking of the record. The “record” in this case was already in the hands of the county clerk, who also served as circuit clerk, and there was evidence that the record was “voluminous.” Although the county clerk had previously “certified” the record on February 6 by placing his “County & Circuit Clerk” stamp on the record, he neglected, as circuit clerk, to file-stamp the record on February 8.
As the majority notes, our case law supports the proposition that when a document has, in fact, been received by the clerk, file-marking is not inexorable proof of the exact time of filing, but is only evidence of the time of filing. Republican Party of Garland County v. Johnson, 358 Ark. 443, 193 S.W.3d 248 (2004); Henard v. St. Francis Election Comm., 301 Ark. 459, 784 S.W.2d 598 (1990); and Tucker v. Batesville Motor Co., 203 Ark. 553, 157 5.W.2d 492 (1942).6 Our rules have apparently not changed this common law pronouncement except with respect to orders and judgments, which are “entered” when stamped with the word “filed.” See Ark. Sup.Ct. Admin. Order No. 2(b)(2). We have also allowed the testimony of the clerk to supply the actual date of filing. See Henard, supra; Stanislaus v. Austin, 202 Ark. 441, 150 S.W.2d 610 (1941) (citing Buchanan v. Commercial Inv. Trust, 177 Ark. 579, 7 S.W.2d 318 (1928)). Here, despite the lack of file-marking, the clerk stated in his affidavit that he “filed the certified copy of the County Court record” at about the same time as he filed the notice of appeal on February 8, 2006, at 1:29 p.m. In my view, under our case law, this is sufficient evidence that the record was filed on February 8. This portion of the clerk’s affidavit is unequivocal. I therefore concur in the majority’s decision that the record, and thus the appeal, was timely filed.
I point out as a final matter, however, that we recently amended District Court Rule 9 to establish special procedures for taking an appeal from county court. See District Court Rule 9(e) (2009). The Reporter’s Notes indicate why: “Former Rule 9 was written solely in terms of appeals from district court, and its requirements did not fit appeals from county courts well.” The new rule permits a party to perfect a county court appeal by filing of a notice of appeal along with a certified copy of the county court order. In our age of fax machines, e-mail, and other electronic communications, it henceforth should be a simple matter for litigants to obtain a file-stamped copy of these documents in order to prove the timely perfecting of their appeals from county court to circuit court.
For the foregoing reasons, I concur in the opinion.
CORBIN, J., joins.
. Counsel for the Commission noted in his affidavit attached to his motion to vacate that the docket sheet was the first page of the county court record.
. This same rule does not apply to allow a litigant to prove that a document has in fact been received by the clerk. See Wandrey v. Etchison, 363 Ark. 36, 210 S.W.3d 892 (2005) (where there was no evidence that a faxed notice of appeal had ever been received by the clerk’s office, proof by way of a fax confirmation sheet and attorney’s affidavit was not sufficient to prove filing).