although this court in Gipson did not mention the word “mandate,” the court by supplemental opinion “clarified” what it meant by its use of the words “appeal dismissed” in its earlier opinion
How later courts described this case
- although this court in Gipson did not mention the word “mandate,” the court by supplemental opinion “clarified” what it meant by its use of the words “appeal dismissed” in its earlier opinion
- supp. opinion denying rehearing
Written by the judges who cited it.
The opinion
Tom Glaze, Justice, concurring. Respondents take exception with the term “appeal dismissed” which this court used in its original decision in this cause, Gipson v. Brown, 295 Ark. 371 , 749 S.W.2d 297 (1988), and in its subsequent per curiam issued July 5, 1988, which reflected the court’s mandate dismissed the chancery court’s decree. Respondents claim the term “appeal dismissed” in the original opinion should control over the mandate language, and therefore would, they surmise, effectively affirm the chancellor’s decree below. Such a claim is unfounded. It is quite obvious that this court’s majority decision was in direct conflict with the chancellor’s decision and this court, based on the rationale and conclusion reached in its opinion, never intended to affirm the trial court’s holding. Because the use of the language “appeal dismissed” in the opinion was apparently confusing to the respondents, the court made an attempt by its July 5,1988 per curiam to clarify any confusion. Ark. Code Ann. § 16-67-325 (a) (1987) (the supreme court may dismiss the cause and enter such judgment upon the record as it may in its discretion deem just). Unquestionably, this court has the authority to recall a mandate regularly issued in situations where a misapprehension exists. See 5(B) C.J.S. Appeal and Error § 1996 (1958); see also Lindus v. N. Ins. Co. of New York, 103 Ariz. 160 , 438 P.2d 315 (1968); Ginn v. Penobscot Co., 342 A.2d 270 (Me. 1970). Although I believe the majority opinion and the court’s mandate can only be read as countervailing and dismissing the trial court’s decree, I would recall the mandate and modify it to read, “Reversed and remanded with directions to the chancery court to dismiss this cause.” Surely, such modification would alleviate any misapprehensions or doubts as to what disposition the majority intended when delivering and issuing its opinion and mandate.
Hays, J., joins in this concurrence.