ARK.] GIPSON V. MUNSON 164-A Cite as 296 Ark. 160 (1988) SUPPLEMENTAL OPINION ON DENIAL OF REHEARING SEPTEMBER 19, 1988 759 S.W.2d 791 PER CURIAM. Petition for rehearing is denied. GLAZE and HAYS, JJ., concur. PURTLE, J., dissents. 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. ยง 16-67-325(a) (1987) (the supreme court may dismiss the cause and enter such
164-B GIPSON V. MUNSON [296 Cite as 296 Ark. 160 (1988) 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 ยง 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. JOHN I. PURTLE, Justice, dissenting. I dissent not only because the majority is so blatantly wrong, but because I want the record to clearly reveal that I did not in any way contribute to the manner in which this case has been handled by this court. The decision to grant the petition for a writ of prohibition was made more than 17 days after the opinion in this appeal had been rendered and the mandate issued. When one faction was ordered to show cause why it should not be held in contempt, the petition was filed in this court seeking temporary relief. We gave them what they asked for, and gratuitously dismissed the whole law suit without any consideration of the merits and in spite of the lack of any precedent from any jurisdiction to support such action. In a purely collateral proceeding, after the decision of the court had become final, the majority simply decided to put an end to the case by dismissing it. The precedent established by this action leaves open the right of any party to collaterally attack decisions of this court at any period in time. Unless this is a one-time-only case, our decisions can no longer be considered final. I wholeheartedly agree with the statements contained in the petition for rehearing, which is on file with the clerk of this court.
I would grant the rehearing and reinstate the case to be heard on its merits.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.