VI. Trials

Rule 38. Jury trial of right.

(a)  Demand. Any party may demand a trial by jury of any issue triable of right by a jury by filing with the clerk a demand therefor in writing at any time after the commencement of the action and not later than 20 days prior to the trial date. Such demand may be indorsed upon a pleading of the party.  
    (b)  Same: Specification of Issues. In his demand, a party may specify the issues which he wishes so tried; otherwise he shall be deemed to have demanded trial by jury for all the issues so triable. If he has demanded trial by jury for only some of the issues, any other party within 10 days after service of the demand, or such lesser time as the court may order, may file a demand for trial by jury of any other or all of the issues of fact in the action.  
    (c)  Waiver. The failure of a party to file a demand as required by this rule and as required by Rule 5(c) constitutes a waiver by him of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.  

History. Amended November 11, 1991, effective January 1, 1992; Reporter's Notes amended May 24, 2001, effective July 1, 2001

Reporter's Notes to Rule 38: - 1. As does FRCP 38, this rule recognizes the constitutional right to trial by jury. Rule 38 does, however, extend the period of time within which a party must request a jury trial. Under FRCP 38, the demand for jury trial must be made not later than 10 days after service of the last pleading directed to the issue subject to jury trial. Under this rule, demand for trial by jury may be made at any time up to 20 days prior to trial. Under prior Arkansas law, the time for demanding a jury trial was governed by Rule 4(c) of the Uniform Rules for Circuit and Chancery Courts. That rule permitted the trial court to determine whether any of the parties desired a trial by jury. Unless one of the parties affirmatively requested a jury trial within 10 days after being contacted by the court, the right was waived, provided, of course, that no prior demand for jury trial had been made. Thus, a party normally had until just prior to trial to request a jury trial and this procedure has seemingly worked well. For this reason, the Committee did not see the need to fix an earlier time by which demand for jury trial has to be made.  

2. Since Rule 18(a) permits the joinder of legal and equitable claims, problems could arise when equitable issues are resolved in circuit court; however, Rule 18(b) permits the trial court to make such orders respecting severance and transfer as may be appropriate and this should cure most potential problems. There may be instances, however, where a circuit judge might be called upon to decide equitable issues in a case where a jury is sitting. In those instances, the court should follow the federal practice of having the jury resolve the legal issues with the court itself resolving the equitable issues. Wright & Miller, Federal Practice And Procedure,  Sections 2305 and 2306.  

3. Under the Federal Rule, demand for a trial by jury is served upon opposing counsel. Under this rule, the demand or request for the jury is filed with the court clerk. The purpose of this provision is to insure that the court itself and its administrators will promptly know if a jury is requested.  

Addition to Reporter's Notes, 2001: - Article 2, Section 7 of the Constitution of 1874 provides, in part, that "[t]he right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy ... ." Rule 38 sets out the procedure for asserting the right to a jury trial.  

Constitutional Amendment 80, which merged courts of law and equity, did not repeal or modify Article 2, Section 7. As a result of the merger, however, the Supreme Court will be required to determine the parameters of the right to trial by jury in the new system. The possible impact is most clearly seen in cases involving legal issues formerly decided in chancery court under the cleanup doctrine. In this situation, the Supreme Court held that a litigant was not deprived of his or her right to trial by jury because that right is limited to cases that would have been decided "at law" in 1874. By virtue of the cleanup doctrine, which was well-established by 1874, legal issues could be decided by the chancellor without a jury. Colclasure v. KansasCity Life Ins. Co., 290 Ark. 585, 720 S.W.2d 916 (1986).   

In a merged system, the question is whether Article 2, Section 7 requires trial by jury with respect to legal issues which, prior to merger, would have been heard in chancery under the cleanup doctrine. Faced with this question after the merger of law and equity in the federal courts, the U.S. Supreme Court held that in a case involving both legal and equitable issues, the former will ordinarily be tried first to the jury in order to avoid the preclusive effect of an initial decision by the court on the equitable issues. See Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962); Beacon Theatres v. Westover, 359 U.S. 500 (1958). Federal cases on this point are not binding, because the right to jury trial in state court is governed not by the Seventh Amendment but by state law. Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996); Colclasure v. Kansas City Life Ins. Co., supra.  

Rule 39. Trial by jury or by the court.

(a)  By Jury. When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, unless (1) the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury or (2) the court, upon motion or of its own initiative, finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or statutes of this State.  
    (b)  By the Court. Issues not demanded for trial by jury as provided in Rule 38 shall be tried by the court; but, notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion, upon motion, may order a trial by a jury of any or all issues.  
    (c)  Advisory Jury and Trial by Consent. In all actions not triable of right by a jury, the court upon motion or of its own initiative, may try any issue with an advisory jury or, with the consent of all parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.  

History. Amended November 11, 1991, effective January 1, 1992

Reporter's Notes to Rule 39: - 1. With the exception of minor wording changes in Section (c), Rule 39 is otherwise identical to FRCP 39. The purpose behind this rule is to insure that when a jury trial has been requested, it will be granted on all issues triable by jury unless the parties thereafter affirmatively waive this right. Under Section (b), the trial court retains discretion to grant a trial by jury even though timely request or demand has not been made.  

2. Section (c) authorizes the trial court to submit any issue to an advisory jury where it would otherwise not be triable by jury or, with the consent of all parties, may order that the verdict of such jury shall be binding as if the issues were triable by jury as a matter of right. Superseded Ark. Stat. Ann.   27-1705 (Repl. 1962) provided that all issues not triable by jury as a matter of right were to be tried by the court, subject to its power to order any  issue to be tried by jury, whether at law or in equity. Thus, the trial courts in this State have previously had the inherent right to submit any issue to a jury. This rule would, however, limit the effect of a jury verdict under Section (c) unless all parties consent to a binding effect.  

3. Under the circumstances outlined in Section (c), it is possible to have a binding jury verdict in equity proceedings. This is a change in Arkansas law as jury verdicts in chancery court have heretofore been considered as advisory only and not binding upon the court. Sullivan v. Wilson Mercantile Co.,  172 Ark. 914, 290 S.W. 938 (1927); City of Magnolia v. Davies,  188 Ark. 19, 64 S.W.2d 85 (1933).  

Rule 40. Trial settings and continuances.

(a)  Settings. Cases shall be set for trial at the request of any party after the issues have been joined. The court may assign a trial date, on its own motion, even though neither party has requested a setting. Precedence shall be given to actions entitled thereto by any statute of this State.  
    (b)  Continuances. The court may, upon motion and for good cause shown, continue any case previously set for trial.  
    (c)  Suits in Which Party or Attorney is Member or Officer of Legislature.   
    (1)  Any and all proceedings in suits pending in any of the courts of this State in which any attorney for either party to any suit is a member of the Senate or of the House of Representatives or is a Clerk of either branch of the General Assembly, or Lieutenant Governor, while presiding as president of the Senate, and any and all proceedings in suits pending in any of the courts of this State in which any member of the Legislature or Clerk of either branch of the General Assembly, or Lieutenant-Governor, while presiding as president of the Senate, is a party, shall be stayed for a time not to exceed fifteen (15) days preceding the convening of the General Assembly and not less than thirty (30) days after its adjournment.  
    (2)  Any and all proceedings in suits pending in any of the courts in this State in which any attorney for either party to any suit is a member of the Legislative Council, or the Legislative Audit Committee, or any Joint Interim Committee of the General Assembly, shall be stayed, or reset if scheduled, if said proceeding has been scheduled on any day upon which the Legislative Council, Legislative Audit Committee, or any Joint Interim Committee is meeting, provided, however, that said attorney shall be a member of the Committee, or alternate member attending in place of a regular member, which is meeting, and provided, further, that said attorney shall request the continuance of the Court no less than three (3) days before said proceeding is to commence.  
    (3)  The term "adjournment" as used in subsection (c) shall mean the adjournment without the establishment of a day certain for reconvening, or adjournment or recess to a date more than thirty (30) days in the future.  
    (4)  The provisions of subsection (c) shall be applicable in the case of special or extraordinary sessions of the General Assembly as well as regular sessions.  

History. Amended February 5, 1979

Reporter's Notes to Rule 40: - 1. Rule 40 deviates substantially in its wording from FRCP 40, although the intent of the rule is essentially the same as the Federal Rule. Section (a) basically follows prior Arkansas law as promulgated in Rule 4(a) of the Uniform Rules for Circuit and Chancery Courts. Thus, the method of setting cases for trial in this State will remain unchanged.  

2. Section (a) recognizes the practice of giving certain types of cases precedence in the setting of cases for trial. An example of an action which has precedence under Arkansas law is an election contest. Ark. Stat. Ann.   3-1002 (Repl. 1962).  

3. FRCP 40 sets no guidelines for determining when a continuance should be granted. The federal courts have taken the position that the matter of granting or refusing to grant a continuance rests in the discretion of the trial court. McSurely v. McClellan,  426 F. 2d 664 (C.C.A. D.C., 1970); Connell v. Steel Haulers, Inc.,  455 F. 2d 688 (C.C.A. 8th, 1972). Prior Arkansas law made a continuance mandatory under superseded Ark. Stat. Ann.   27-1401 (Repl. 1962) when a party was represented by an attorney who was in the legislature and it was in session; otherwise, the matter of continuances rested within the discretion of the trial court. Baltimore & Ohio Ry. Co. v. McGill Bros. Rice Mill,  185 Ark. 108, 46 S.W.2d 651 (1932); Wallace v. Hamilton,  238 Ark. 406, 382 S.W.2d 363 (1964). Under this rule, a continuance is never mandatory as was previously the case involving a member of the legislature. To this extent, Rule 40 changes Arkansas law.  

4. Rule 40 does not require that a motion for continuance be in writing. Neither does it require that notice be afforded to opposing counsel that a continuance is sought. The court can, in its discretion, require such notice and as a practical matter notice, either orally or in writing, should be given to opposing counsel in most instances.  

Addition to Reporter's Notes, 1979 Amendment: - Section (c) of Rule 40 did not appear in the original version of the Rules of Civil Procedure adopted by the Supreme Court in December 1978 but was added less than two months later. See In re Rules of Civil Procedure, Rule 40,  265 Ark. 963 (1979). Thus, this provision was in place when the Rules went into effect on July 1, 1979, although the Reporter's Notes were not modified to reflect its addition. Section (c) is virtually identical to a superseded statute, Ark. Stat. Ann.  27-1401 (Repl. 1962), as amended by Act 333 of 1979 [now see  16-63-406].  

Rule 41. Dismissal of actions.

(a)  Voluntary Dismissal; Effect Thereof.   
    (1)  Subject to the provisions of Rule 23(e) and Rule 66, an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court. Although such a dismissal is a matter of right, it is effective only upon entry of a court order dismissing the action.  
    (2)  A voluntary dismissal under paragraph (1) operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based upon or including the same claim, unless all parties agree by written stipulation that such dismissal is without prejudice.  
    (3)  In any case where a set-off or counterclaim has been previously presented, the defendant shall have the right of proceeding on his claim although the plaintiff may have dismissed his action.  
    (b)  Involuntary Dismissal. In any case in which there has been a failure of the plaintiff to comply with these rules or any order of court or in which there has been no action shown on the record for the past 12 months, the court shall cause notice to be mailed to the attorneys of record, and to any party not represented by an attorney, that the case will be dismissed for want of prosecution unless on a stated day application is made, upon a showing of good cause, to continue the case on the court's docket. A dismissal under this subdivision is without prejudice to a future action by the plaintiff unless the action has been previously dismissed, whether voluntarily or involuntarily, in which event such dismissal operates as an adjudication on the merits.  
    (c)  Dismissal of Counterclaim, Cross-Claim or Third-Party Claim. The provisions of this rule apply to the dismissal of any counterclaim, cross-claim or third-party claim.  
    (d)  Costs of Previously Dismissed Action. If a plaintiff who has once dismissed an action, or who has suffered an involuntary dismissal in any court, commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order. For purposes of this rule, the term "costs" means those items taxable as costs under Rule 54(d)(2).  

History. Amended July 9, 1984, effective September 1, 1984; amended November 11, 1991, effective January 1, 1992; amended January 28, 1999; amended March 13, 2003

Reporter's Notes to Rule 41: - 1. Rule 41 differs significantly from FRCP 41 and basically follows prior Arkansas law. Under the Federal Rule, a plaintiff has the unqualified right to dismiss his claim without prejudice only until the defendant has filed his answer. Thereafter, court approval is required in order to dismiss without prejudice and the court has discretion to deny such a motion. Cone v. West Virginia Pulp & Paper Co.,  330 U.S. 212, 67 S. Ct. 752 (1947). Indeed, FRCP 41 was purposely adopted to prevent a plaintiff from taking a voluntary non-suit at any stage of the proceedings and to put the control in the hands of the trial judge. Ockert v. Union Barge Line Corp.,  190 F. 2d 303 (C.C.A. 3rd, 1951).  

2. Section (a) rejects the limitations contained in FRCP 41 and instead follows prior Arkansas law as set forth in superseded Ark. Stat. Ann.   27-1405 (Repl. 1962), by permitting one voluntary non-suit at any stage of the case prior to its submission to the jury or the court sitting as the fact finder. This Section does recognize, however, that court approval must be obtained in order to dismiss a claim under Rule 23 (d) and Rule 66.  

3. Section (a) retains the provisions of superseded Ark. Stat. Ann.   27-1407 (Repl. 1962), which permitted a defendant to proceed on his set-off or counterclaim even though the plaintiff's claim has been dismissed.  

4. Section (b) also marks a significant variation from FRCP 41(b). Under this rule, the trial court has the right to dismiss on its own motion a claim for failure to prosecute the action or failure to comply with these rules or any order of the court. Under the Federal Rule, such dismissal must be on motion of the defendant or other party affected. Also, under FRCP 41, a dismissal by the court under Section (b) is generally with prejudice, whereas under this rule, such a dismissal is without prejudice provided the case has not been previously dismissed in which event the second dismissal is with prejudice. The Federal Rule was rejected for the reason that while it states that an involuntary dismissal is with prejudice, the appellate courts have been quick to find an abuse of discretion on the part of the trial court in dismissing a claim. Pond v. Braniff Airways, Inc.,  453 F. 2d 347 (C.C.A. 5th, 1972); Dyotherm Corp. v. Turbo Machine Co.,  392 F. 2d 146 (C.C.A. 3rd, 1968). The Committee believed that the better practice is to make an involuntary non-suit without prejudice, but limit the number of times a case can be dismissed, whether voluntarily or involuntarily.  

5. Omitted from Rule 41 is the provision found in FRCP 41(b) relative to dismissals after the completion of plaintiff's case when it is tried without a jury. Rule 50(a) accomplishes the same purpose whether the case is tried with or without a jury. This is the procedure previously followed in Arkansas and it has seemingly worked well.  

6. Section (d) goes beyond the language of FRCP 41(d) by expressly permitting the trial court to impose costs or sanctions against a party who has previously had his claim dismissed, whether voluntarily or involuntarily. While the Federal Rule does not expressly confer such power upon the trial court, it has been held that the court does possess such power. Gainey v. Brotherhood R. & S. S. Clerks,  34 F.R.D. 8 (D.C. Pa., 1963). This rule is designed to clear any misunderstanding or confusion on this point.  

Additions to Reporter's Notes, 1984 Amendments: - Rule 41(b) is amended to make specific the time period after which the court must order cause to be shown why the case should not be dismissed for want of prosecution. While Rule 10 of the Uniform Rules for Circuit and Chancery Courts provided such a dismissal was without prejudice, this rule provides it is with prejudice if it is the second dismissal, whether the previous dismissal was voluntary or involuntary.  

Addition to Reporter's Notes, 1999 Amendment: - Subdivision (a) has been divided into three numbered paragraphs and revised to reflect case law. In Blaylock v. Shearson Lehman Brothers, Inc.,  330 Ark. 620, 954 S.W.2d 939 (1997), the Supreme Court noted that it had "long interpreted [Rule 41(a)] as creating an absolute right to a nonsuit prior to submission of the case to the jury or to the court." In the same case, the Court held that "a court order is necessary to grant a nonsuit and the judgment or decree must be entered to be effective."  

A new sentence has been added to subdivision (d) defining "costs" as those recoverable under Rule 54(d)(2), a new provision. A definition was deemed advisable in light of continuing confusion as to expenses that can be taxed as costs. See, e.g., Wood v. Tyler,  317 Ark. 319, 877 S.W.2d 582 (1994); Sutton v. Ryder Truck Rental, Inc.,  305 Ark. 231, 807 S.W.2d 905 (1991).  

Addition to Reporter's Notes, 2003 Amendment: - The reference to "Rule 23(d)" in subdivision (a)(1) has been corrected to read "Rule 23(e)."  

Rule 42. Consolidation; separate trials.

(a)  Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delays.  
    (b)  Separate Trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or any number of claims, cross-claims, counterclaims, third-party claims, or issues.  

Reporter's Notes to Rule 42: - 1. Rule 42 is substantially the same as FRCP 42. Prior Arkansas law concerning consolidation of cases for trial was found in superseded Ark. Stat. Ann.   27-1304 and 27-1305 (Repl. 1962) and little change is effected by this rule. Generally speaking, consolidation of cases is normally permitted for convenience and economy in judicial administration and not to merge claims into a single cause or change parties' rights. Johnson v. Manhattan R. Co.,  289 U.S. 479, 53 S. Ct. 721 (1933). The question of whether to order consolidation rests in the sound discretion of the trial court. United States v. Knauer,  149 F. 2d 519 (C.C.A. 7th, 1945), aff'd, 328 U.S. 654, 66 S. Ct. 1304.  

Rule 43. Taking of testimony.

(a)  Form. In all trials, the testimony of witnesses shall be taken in open court, unless otherwise provided by these rules or as otherwise provided by law. The court may, for good cause shown in compelling circumstances and upon appropriate safeguards, permit presentation of testimony in open court by contemporaneous transmission from a different location.  
    (b)  Affirmation in Lieu of Oath. Whenever under these rules an oath is required to be taken, a solemn affirmation may be accepted in lieu thereof.  
    (c)  Evidence on Motions. When a motion is based on facts not appearing of record, the court may hear the matter on affidavits presented by the respective parties, or the court may direct that the matter be heard wholly or partly on oral testimony or deposition.  
    (d)  Interpreters. The court may appoint an interpreter of its own selection and may fix his reasonable compensation. The compensation shall be paid out of funds provided by law or by one or more of the parties as the court may direct, and may be taxed ultimately as costs, in the discretion of the court.  

History. Amended February 10, 2005

Reporter's Notes to Rule 43: - 1. Prior to the 1975 amendments, FRCP 43 was entitled "Evidence" and provided the basic rule of evidence in civil cases in federal courts. The adoption of the Federal Rules of Evidence abrogated much of FRCP 43; hence its substantial revision in 1975. By enacting Act 723 of 1976, the Arkansas Legislature adopted the Uniform Rules of Evidence which are identical to the Federal Rules of Evidence insofar as the mode and order of interrogation and presentation of testimony are concerned. Hence, Rule 43 is identical to FRCP 43.  

2. Sections (b) and (c) do not work any changes in Arkansas procedure. Superseded Ark. Stat. Ann.   28-201 (Repl. 1962) permitted the use of affidavits upon motions although inherent in that statute was the right of the trial court to require oral or deposition testimony in lieu of affidavits.  

3. Section (d) is identical to FRCP 43(f) and provides for the permissive appointment of an interpreter and the payment of his compensation. Rule 604 of the Uniform Rules of Evidence touches upon the use of interpreters and requires that he be subject to the provisions of the Uniform Rules concerning qualifications as an expert and the administration of an oath or affirmation that he will make a true translation.  

Addition to Reporter's Notes, 2005 Amendments: - Rule 43(a) has been amended in two ways. Continuing the substantial identity between the Arkansas Rule and FRCP 43, both of these changes mirror 1996 revisions of the Federal Rule. First, the requirement that testimony be taken "orally" has been eliminated. The amendment allows testimony through non-verbal means (i.e., writing, sign language, or computer) from a witness who is unable to speak. Second, a new provision has been added. That provision gives the circuit court discretion to allow testimony in open court from a different location by contemporaneous transmission. Two important requirements must inform that discretion: good cause shown in compelling circumstances and appropriate safeguards.  

Because our legal tradition strongly prefers testimony in the fact-finder's presence, the inconvenience to a witness of attending trial will not establish good cause or compelling circumstances. The amended Rule contemplates some unexpected event that makes attendance by the witness very difficult. Examples of such events include an accident, an illness, or the need for an emergency hearing. When the witness's absence can be reasonably anticipated, a deposition should be the preferred method of securing the testimony. See generally, Advisory Committee's Note, 1996 Amendment to FRCP 43(a).  

The amended Rule also requires the circuit court to adopt appropriate safeguards when it allows testimony by contemporaneous transmission. Those safeguards should ensure accurate identification of the witness, protect against influence by persons present with the witness, and secure accurate transmission of the testimony.  

Rule 44. Proof of official record.

(a)  Authentication.   
    (1)  Domestic Record. An official record kept within the United States, or any state, district or commonwealth, or within a territory subject to the administrative or judicial jurisdiction of the United States, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by the officer's deputy, and accompanied by a certificate that such officer has the custody. The certificate may be made by a judge of a court of record having jurisdiction in the governmental unit in which the record is kept, authenticated by the seal of the court, or by any public officer having a seal of office and having official duties in the governmental unit in which the record is kept, authenticated by the seal of his office.  
    (2)  Foreign Record. A foreign official record, or an entry therein, when admissible for any purpose, may be evidenced by an official publication, or copy thereof, attested by a person authorized to make attestation, and accompanied by a final certification as to the genuineness of the signature and official position (i) of the attesting person, or (ii) of any foreign official whose certificate of genuineness of signature and official position relates to the attestation or is in a chain of certificates of genuineness of signature and official position relating to the attestation. A final certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If a reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of the documents, the court may, for good cause shown, (i) admit an attested copy without final certificate or (ii) permit the foreign official record to be evidenced by an attested summary with or without a final certification. The final certification is unnecessary if the record and the attestation are certified as provided in a treaty or convention to which the United States and the foreign country in which the official record is located are parties.  
    (b)  Alternate Method for Certain Domestic and Foreign Records. The statutes, codes, written laws, executive acts, or legislative or judicial proceedings of any domestic or foreign jurisdiction or governmental unit thereof may also be evidenced by any publication proved to be commonly accepted as proof thereof in the tribunals having jurisdiction in that governmental unit.  
    (c)  Lack of Record. A written statement that after diligent search, no record or entry of a specified tenor is found to exist in the records designated by the statement, authenticated as provided in subdivision (a)(1) of the rule in the case of a domestic record, or complying with the requirements of subdivision (a)(2) of this rule for a summary in the case of a foreign record, is admissible as evidence that the records contain no such record or entry.  
    (d)  Other Proof. This rule does not prevent the proof of official records or of entry or lack of entry therein by an other method authorized by law.  

History. Amended November 8, 1993, effective January 1, 1994

Reporter's Notes to Rule 44: - 1. With the exception of minor wording changes, Rule 44 is substantially identical to FRCP 44. These changes are lifted from superseded Ark. Stat. Ann.   27-2505 (Supp. 1975), which was taken largely from FRCP 44. These changes do not affect the substance of the Federal Rule.  

2. In the last sentence of Section (a)(1), the phrase "of the district or political subdivision" which is found in the Federal Rule, is omitted and the phrase "having jurisdiction in the governmental unit" is inserted in lieu thereof. The effect of this change is to require that the judge making the certificate be the judge of a court which has jurisdiction.  

3. Section (b) includes the alternate method of proving certain records previously found in superseded Ark. Stat. Ann.   27-2505(c) (Supp. 1975). Although this provision is not found in FRCP 44, it has been held that such proof is proper. United States v. Aluminum Company of America,  1 F.R.D. 71 (D.C. N.Y., 1939). Also, it should be noted that Rule 902 (5) of the Uniform Rules of Evidence permits the use of official publications without extrinsic evidence of authenticity.  

Addition to Reporter's Notes, 1993 Amendment: - The changes made in subdivisions (a)(1) and (a)(2) are identical to those made in the corresponding federal rule in 1991. The amendment to subdivision (a)(1) strikes the references to specific territories, two of which are no longer subject to the jurisdiction of the United States, and adds a generic term to describe governments having a relationship with the United States such that their official record should be treated as domestic records.  

The amendment to subdivision (a)(2) adds a sentence to dispense with the final certification by diplomatic officers when the United States and the foreign country where the record is located are parties to a treaty or convention that abolishes or displaces the requirement. In that event the treaty or convention is to be followed. This changes the former procedure for authenticating foreign official records only with respect to records from countries that are parties to the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents. It does not affect the former practice of attesting the records, but only changes the method of certifying the attestation. See generally  Comment, 11 Harv. Int'l L.J. 476 (1970).

Rule 44.1. Determination of foreign law.

(a)  Notice. A party who intends to raise an issue concerning the law of any jurisdiction or governmental unit thereof outside this State shall give notice in his pleading or other reasonable written notice.  
    (b)  Materials to Be Considered. In determining the law of any jurisdiction or governmental unit thereof outside this State, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the rules of evidence.  
    (c)  Court Decision and Review. The court, not the jury, shall determine the law of any jurisdiction or governmental unit thereof outside this State. Its determination is subject to review on appeal as a question of law.  

Reporter's Notes to Rule 44.1: - 1. Rule 44.1 is identical to superseded Ark. Stat. Ann.   27-2504 (Supp. 1975) and therefore works no changes in Arkansas practice. This rule is substantially the same as FRCP 44.1, but the wording is changed to adapt the rule to state practice. Whereas the Federal Rule is concerned only with the determination of the law of a foreign country, this rule applies to the law of any governmental unit outside the State of Arkansas.  

Rule 45. Subpoena.

(a)  Form and Issuance. A subpoena issued by the clerk shall be under seal, state the name of the court and the title of the action, and command each person to whom it is directed to appear and give testimony at the time and place therein specified. An attorney admitted to practice in this State, as an officer of the court, may also issue and sign a subpoena in any action pending in a court of this State in which the attorney is counsel of record.   
    (b)  For Production of Documentary Evidence. A subpoena issued pursuant to subdivision (d), (e), or (f) of this rule may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein; but the court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable or oppressive or (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents or tangible things.  
    (c)  Service. A subpoena for a trial or hearing or for a deposition may be served at any place within this State in the manner prescribed in this subdivision. A subpoena for a trial or hearing or for a deposition may be served by the sheriff of the county in which it is to served, by his deputy, or by any other person who is not a party and is not less than eighteen (18) years of age. Service shall be made by delivering a copy of the subpoena to the person named therein; provided, however, that a subpoena for a trial or hearing may be served by telephone by a sheriff or his deputy when the trial or hearing is to be held in the county of the witness' residence. A subpoena for a trial or hearing or for a deposition may also be served by an attorney of record for a party by any form of mail addressed to the person to be served with a return receipt requested and delivery restricted to the addressee or agent of the addressee.  
    (d)  Subpoena for Trial or Hearing. At the request of any party the clerk of the court before which the action is pending shall issue a subpoena for a trial or hearing, or a subpoena for the production at a trial or hearing of documentary evidence, signed and sealed, but otherwise in blank, to the party requesting it, who shall fill it in before service. The subpoena may also be issued by an attorney pursuant to subdivision (a) of this rule. Notice of the subpoena shall be promptly given to all parties in the manner prescribed by Rule 5(b). A witness, regardless of his county of residence, shall be obligated to attend for examination on trial or hearing in a civil action anywhere in this State when properly served with a subpoena at least two (2) days prior to the trial or hearing. The court may grant leave for a subpoena to be issued within two (2) days of the trial or hearing. The subpoena must be accompanied by a tender of a witness fee calculated at the rate of $30.00 per day for attendance and $0.25 per mile for travel from the witness' residence to the place of the trial or hearing. In the event of telephone service of a subpoena by a sheriff or his deputy, the party who caused the witness to be subpoenaed shall tender the fee prior to or at the time of the witness' appearance at the trial or hearing. If a continuance is granted and if the witness is provided adequate notice thereof, reservice of the subpoena shall not be necessary. Any person subpoenaed for examination at the trial or hearing shall remain in attendance until excused by the party causing him to be subpoenaed or, after giving testimony, by the court.  
    (e)  Subpoena for Taking Depositions: Place of Examination. Upon the filing of a notice of deposition upon oral examination pursuant to Rule 30(b), the clerk of the court in which the action is pending shall, upon the request of the party giving notice, issue a subpoena in accordance with the notice. The subpoena may also be issued by an attorney pursuant to subdivision (a) of this rule. The subpoena may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents, or tangible things which constitute or contain matters within the scope of the examination permitted by Rule 26(b), but in that event the subpoena will be subject to the provisions of Rule 26(c) and subdivision (b) of the rule. The witness must be properly served at least five (5) business days prior to the date of the deposition, unless the court grants leave for subpoena to be issued within that period. The subpoena must be accompanied by a tender of a witness fee calculated at the rate of $30.00 per day for attendance and $0.25 per mile for travel from the witness' residence to the place of the deposition.  

   The person to whom the subpoena is directed may, within ten (10) days after the service thereof or on or before the time specified in the subpoena for compliance if such time is less than ten (10) days after service, serve upon the attorney causing the subpoena to be issued written objection to inspection or copying of any or all of the designated materials. If objection is made, the party causing the subpoena to be issued shall not be entitled to inspect and copy the materials except pursuant to an order of the court before which the deposition may be used. The party causing the subpoena to be issued may, if objection has been made, move, upon notice to the deponent, for an order at any time before or during the taking of the deposition.  

   A witness subpoenaed under this subdivision may be required to attend a deposition at any place within 100 miles of where he resides, or is employed, or transacts his business in person, or at such other convenient place as is fixed by an order of court.  
    (f)  Depositions for Use in Out-of-State Proceedings. Any party to a proceeding pending in a court of record outside this state may take the deposition of any person who may be found within this state. A party who has filed a notice of deposition upon oral examination in an out-of-state proceeding, which complies with Rule 30(b), may file a certified copy thereof with the circuit clerk of the county in which the deposition is to be taken; whereupon, the clerk shall issue a subpoena in accordance with the notice. A deposition, including any subpoenas issued therefor, shall be subject to these rules as well as to any rule or statute creating a privilege or immunity from discovery. Any objection or motion for protective order with respect to the deposition shall be heard by a circuit judge of the county in which the deposition is to be taken.  
    (g)  Contempt. When a witness fails to attend in obedience to a subpoena or intentionally evades the service of a subpoena by concealment or otherwise, the court may issue a warrant for arresting and bringing the witness before the court at a time and place to be fixed in the warrant, to give testimony and answer for contempt.  

History. Amended July 1, 1986, effective September 15, 1986; amended December 21, 1987, effective March 14, 1988; amended November 20, 1989, effective January 1, 1990; amended January 27, 2000; amended January 27, 2000, effective March 23, 2000; amended February 1, 2001; amended May 24, 2001, effective July 1, 2001; amended January 24, 2002

Reporter's Notes to Rule 45: - 1. Rule 45 contains numerous changes from FRCP 45. These changes are generally designed to continue certain procedures which were provided under superseded Arkansas law. Section (a) provides the mechanics for the issuance of a subpoena and whereas under FRCP 45 a subpoena is issued only by the court clerk, this section retains the authority of officers before whom depositions are taken to issue subpoenas for that purpose under Section (d). Superseded Arkansas law was found in Ark. Stat. Ann.    28-501, et seq. (Repl. 1962), the bulk of which is retained under this rule.  

2. Section (b) provides for the issuance of a subpoena duces tecum. Superseded Ark. Stat. Ann.   28-357 (Repl. 1962) seemed to suggest that only those items which were admissible in evidence were subject to being subpoenaed. However, superseded Ark. Stat. Ann.   28-540 (Repl. 1962), which was patterned after FRCP 45(b), appeared to make the subpoena just as broad as that under the Federal Rule. The latter provides for the quashing of a subpoena duces tecum only for certain stated grounds and an objection based solely upon the alleged inadmissibility of the items sought is insufficient. United States v. 691.81 Acres of Land,  443 F. 2d 461 (C.C.A. 6th, 1971).  

3. Section (c) permits any person authorized under Rule 4(c) to serve a summons to also serve a subpoena. Witnesses residing outside the county must receive five days' notice and those within the county three days' notice. Service by telephone is permitted where the witness is to be served in the same county where the trial is to be held. Ark. Stat. Ann.   28-508 (Repl. 1962) is superseded. The rule essentially incorporates provisions of superseded Ark. Stat. Ann.   28-510 and 28-514. Those statutes obligated a witness to attend a trial when properly served and tendered expenses and fees, and failure to do so authorized the court to hold the witness in contempt or have the witness arrested and brought before the court for contempt proceedings. Subpoenas to be served within three days of trial must be issued with leave of the court.  

4. Section (d) also differs significantly from the Federal Rule concerning subpoenas for deposition purposes. Under the latter, the clerk issues the subpoena after formal notice is filed. Under this rule, following superseded Ark. Stat. Ann.   28-539 (Repl. 1962), the subpoena can be issued by either the court clerk or by an officer authorized to take depositions. The third paragraph of Section (d) is modified from the Federal Rule to provide simply that a witness subpoenaed for purpose of a deposition cannot be required to travel outside the county wherein he resides or transacts his business in order to give the deposition unless ordered to do so by the court.  

5. Section (e) permits service of subpoenas throughout the State of Arkansas. It does not, however, attempt to regulate the enforcement of a subpoena which is to be served outside this State. Whether a sister state will honor an Arkansas subpoena depends upon the reciprocity between the two states and ultimately the law of the sister state.  

Addition to Reporter's Note, 1986 Amendment: - Rule 45(c) is substantially revised. The 1986 amendment changes prior Arkansas practice by permitting any person who is not a party and is not less than 18 years of age to serve a subpoena, thus adopting the federal practice. Moreover, the amended rule permits service of a subpoena by mail in the same manner as service of process under Rule 4(d)(8). The amended rule thus permits an attorney for any party to serve a subpoena by mail, so long as the requirements of Rule 4(d)(8) with respect to restricted delivery, return receipt, etc. are satisfied. The 1986 amendment also eliminates the distinction between witnesses residing in the county of trial and those residing outside the county. All witnesses must be served at least five days prior to trial, unless the court grants leave to allow service within that period, and all must be paid the same attendance fee and travel expenses. These fees, specified in the amended rule, must be paid at the time of trial, a change from the prior practice of requiring payment or tender of the fees at the time of service. Rule 45(c) also now makes plain that re-service of the subpoena is not necessary if a continuance is granted in the matter and the witness is given sufficient notice prior to his attendance. In that situation, the witness would be compelled to attend trial on the new date, and a new subpoena would not be required. Subsection (d) is also amended to make plain that the five-day minimum for service and the attendance and travel fee requirements apply to subpoenas for taking depositions as well as to subpoenas for appearance at trial. However, there is no change in the requirement that a deposition witness can be deposed only in the county where he resides, is employed, or transacts his business in person, absent a court order.  

Addition to Reporter's Notes, 1988 Amendment: - Rule 45 is amended in an attempt to refine some changes made in subsections (c) and (d) in 1986. First, language in both subsections requiring payment of the witness fee at the time and place of the trial or deposition has been deleted. Under the amended rule, the witness fee must be paid or tendered when served with the subpoena, as was the case prior to the 1986 amendment. Second, language in both subsections basing the witness fee on the witness' "reasonable expenses for the loss of time based on [his] earnings" has been deleted. Accordingly, the witness fee is a flat $30 per day. The latter change was made because of problems caused by occurrence witnesses who have claimed extremely high fees based on their earnings for a single day. Such highly paid individuals, like all other citizens, have a societal obligation to come forth and give evidence, much as they have an obligation to serve, when called, as jurors. To vary the witness fee to take into account their high salaries would cause obvious difficulties for litigants unable to pay such a fee. Expert witnesses are covered by Rule 26(b)(4)(C).  

Addition to Reporter's Note, 1989 Amendment: - Rule 45 has undergone several modifications since it became effective in 1979. Because the 1989 amendment rewrites virtually the entire rule, previous Reporter's Notes are superseded and should be consulted only for historical purposes.  

1. Subdivision (a) provides the mechanics for the issuance of a subpoena. Subpoenas may now be issued only by the clerk of court. Authority for the issuance of deposition subpoenas by officers before whom depositions may be taken has been eliminated.  

2. Subdivision (b) provides for the issuance of a subpoena duces tecum. Except for minor technical corrections, this provision is unchanged.  

3. Subdivision (c) governs service of subpoenas and makes clear that any subpoena, for either trial or deposition, may be served anywhere in the state. Moreover, the subdivision expressly provides that service of a subpoena by mail may be made by an attorney of record for either party. Telephone service of subpoenas is limited to sheriffs and their deputies, who may use this method of service with respect to trial subpoenas directed to witnesses who reside in the county where the trial is to be held. In addition, material from former subdivision (c) governing trial subpoenas has been shifted to subdivision (d). Similarly, provisions regarding contempt have been placed under subdivision (g), which specifically addresses that issue.  

4. Subdivision (d) applies to subpoenas for trials or hearings. Most of this material appeared in former subdivision (c). However, the revised rule reduces the period required for service of a subpoena prior to trial without leave of court from five to two days; increases the allowance for witness travel to trial to twenty-five cents per mile; clarifies the authority of the party who subpoenas a witness to excuse the witness prior to testimony by the witness; and eliminates an outdated provision authorizing the taking of depositions of witnesses exempt by law from personal attendance at trial. Pursuant to subdivision (c), a subpoena for a witness to appear at a trial or hearing may be served anywhere in the state.  

5. Subdivision (e) governs subpoenas for the taking of depositions, including those for the production of documentary evidence. The 1989 amendment eliminates the authority of an officer authorized to take a deposition to issue subpoenas for depositions. Under the revised procedure, the clerk of court is to issue a subpoena for a deposition upon the request of a party and the filing by that party of a notice of the deposition complying with Rule 30. Consistent with the increase in travel allowance for trial witnesses under subdivision (d), the travel allowance for deposition witnesses is also increased to twenty-five cents per mile. However, although the period of notice to a witness prior to trial has been reduced to two days under subdivision (d), the period of notice to a deposition witness is five business days. In addition, the geographic limits within which a deposition witness is required to attend a deposition have been expanded from the county of the witness' residence to any place within 100 miles of where the witness resides, is employed, or transacts business in person. Pursuant to subdivision (c), a subpoena for a deposition may be served anywhere in the state.  

6. Subdivision (f) establishes a procedure for the taking of depositions within the state for use in proceedings pending in other states. In conjunction with the adoption of this provision, Rule 28(c) has been modified to apply only to proceedings pending in foreign countries.  

7. Subdivision (g) governs contempt proceedings. It is a condensed version of language that appeared in former subdivision (c), which seemed to apply only to trial subpoenas. This subdivision replaces a more general contempt provision found in former subdivision (f).  

Addition to Reporter's Notes, 2000 Amendments: - Subdivision (a) has been amended to permit an attorney admitted to practice in Arkansas, as an officer of the court, to issue subpoenas in Arkansas cases in which he or she is counsel of record. Cross-references to subdivision (a) have also been added to subdivisions (d) and (e) of the rule. This authority does not apply to subpoenas pursuant to subdivision (f), which governs depositions for use in out-of-state proceedings; accordingly, a subpoena under subdivision (f) may be issued only by the clerk. The phrase "admitted to practice" in amended subdivision (a) refers not only to attorneys licensed in Arkansas, but also to those admitted pro hac vice.  

In 1991, the corresponding federal rule was amended to allow attorneys to issue subpoenas. See Rule 45(a)(3), Fed. R. Civ. P. The federal rule expressly provides for sanctions, including lost earnings and reasonable attorneys' fees, against an attorney "responsible for issuance and service of a subpoena" that "impos[es] an undue burden or expense on the person subject to that subpoena." Rule 45(c)(1), Fed. R. Civ. P. While a similar provision has not been added to the Arkansas rule, the courts have inherent authority to sanction attorneys who abuse their power to issue subpoenas.  

Addition to Reporter's Notes, [February] 2001 Amendment: - Subdivision (b) of the rule has been amended to emphasize that a subpoena duces tecum is permissible only in connection with a deposition, hearing, or trial. This has always been the case under Rule 45, but a clarifying amendment was deemed advisable in light of recent cases in which lawyers have employed subpoenas to obtain documents from non-parties without a deposition. The Supreme Court has not adopted a provision authorizing a subpoena solely to compel a non-party to produce documents or submit to an inspection. Compare Rules 34(c) & 45(a)(1)(C), Fed. R.Civ. P.  

It also appears that some attorneys construed Rule 45 as not only allowing such a subpoena, but permitting one without notice to opposing counsel. Under the amended rule, there is no doubt but that these so-called "stealth subpoenas" are improper and that notice is necessary for any subpoena. If the subpoena is issued in connection with a deposition, subdivisions (e) and (f) expressly require notice of the deposition. Moreover, a new sentence has been added to subdivision (d) requiring that notice of a subpoena for a trial or hearing "be promptly given to all parties in the manner prescribed by Rule 5(b)."  

Addition to Reporter's Notes, [May] 2001 Amendment: - Subdivision (f) has been amended by deleting the reference to chancery judges. Constitutional Amendment 80 established circuit courts as the "trial courts of original jurisdiction" in the state and abolished the separate chancery and probate courts.  

Addition to Reporter's Notes, 2002 Amendment: - The third sentence of subdivision (f) has been amended to expressly provide that a deposition taken for use in an out-of-state proceeding is subject to the Rules of Civil Procedure, as well as to any rule or statute "creating a privilege or immunity from discovery." Previously, this sentence stated only that the Rules applied to subpoenas issued for such depositions. Also, the last sentence of subdivision (f) has been revised to include a specific reference to motions for protective orders made with respect to the deposition pursuant to Rule 26(c). The former version of this sentence mentioned only objections.  

The following form for subpoenas is adopted and shall be published in the notes immediately following Rule 45 in the Court Rules volume of the Arkansas Code:  

Subpoena Form
[click to view form in .PDF format]

Addition to Reporter's Notes Regarding Subpoena Form (January 2002): - This form was designed for civil cases, including probate and juvenile matters, and should not be used in criminal proceedings. It is based on the form used in the federal courts. See Form AO 88, Subpoena in a Civil Case (Rev. 1994), reprinted in 1B Federal Procedural Forms  1:1270 (1999). However, it departs from the federal model as necessary to accommodate differences between the Arkansas Rules of Civil Procedure and the federal rules.  

Rule 45 does not mention the form, but the Supreme Court's order of adoption describes it as "official." In re Arkansas Rules of Civil Procedure, 340 Ark. 731, 733 (2000). Although use of an exact reproduction of the form is not mandatory, a subpoena must include all information called for by the form. For example, the second page of the form contains a "notice to persons subject to subpoenas" intended to advise those persons of their rights and duties under Rule 45. A subpoena without this information would be subject to challenge. However, so long as the necessary information is included, use of a "home-grown" document should not be fatal.  

Additional information may be included if it is not inconsistent with Rule 45 or the form itself. For instance, a subpoena issued by the clerk might contain the name, address and phone number of the attorney who requested its issuance. Other information can be added in certain spaces on the form. The division in which the case is pending may also be included along with the street address in the box labeled "place of testimony."  

On the other hand, modification of the form in such a way that distorts the controlling law or misleads the recipient is impermissible. Under Rule 45(b), for example, a subpoena duces tecum directed to a non-party is permissible only in connection with a deposition, hearing, or trial. Consequently, adding to the form a box to be checked and an accompanying statement to the effect that the recipient is commanded to permit inspection of specified documents at counsel's office on a given date, is not permissible. By contrast, the federal form offers this option, which is available under the federal rules. See Rules 34(c) & 45(a)(1)(C), Fed. R. Civ. P.  

Unless a statute provides a procedure different from that specified in Rule 45, the rule and the form are applicable in probate and juvenile cases. Certain probate matters - such as will contests and adoptions - are "special proceedings" within the meaning of Rule 81(a) and thus excepted from the Rules of Civil Procedure if a statute sets out a different procedure. E.g., Brantley v. Davis, 305 Ark. 68, 805 S.W.2d 75 (1991). Some juvenile matters may also be special proceedings. See Kelley v. State, 191 Ark. 848, 88 S.W.2d 65 (1935). If there is no such statute, then the rules apply. Norton v. Hinson, 337 Ark. 487, 989 S.W.2d 535 (1999).  

There appears to be only one statute that uses the word "subpoena" in connection with probate cases, and it does not conflict with Rule 45. See Ark. Code Ann.  5-2-317(b)(3). By statute, the Rules of Civil Procedure apply to "all proceedings" in juvenile cases "until rules of procedure for juvenile court are developed and in effect," except as otherwise provided by the juvenile code. Ark. Code Ann.  9-27-325(f). No such rules have been promulgated, and the only statute dealing with subpoenas in juvenile cases is not inconsistent with Rule 45. See Ark. Code Ann.  9-27-310(e). Accordingly, the rule and the subpoena form apply in probate and juvenile proceedings.  

Rule 46. Exceptions unnecessary.

Formal exceptions to rulings or orders of the court are unnecessary; but for all purposes for which an exception has heretofore been necessary, it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him.  

Reporter's Notes to Rule 46: - 1. Rule 46 is identical to FRCP 46 and to superseded Ark. Stat. Ann.   27-1762 (Repl. 1962). This rule makes no changes in Arkansas practice and procedure.  

Rule 47. Jurors.

(a)  Examination of Jurors. The Court shall either permit the parties or their attorneys to conduct the examination of prospective jurors or itself conduct the examination. In the latter event, the court shall permit the parties or their attorneys to supplement the examination by such further inquiry as it deems proper.  
    (b)  Alternate Jurors. The court may direct that not more than two jurors in addition to the regular jury be called and impanelled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the qualifications, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict. Each side is entitled to one peremptory challenge in addition to those otherwise allowed by law if one or two alternate jurors are to be impanelled. The additional peremptory challenge may be used against an alternate juror only and the other peremptory challenges allowed by law shall not be used against an alternate juror.  

Reporter's Notes to Rule 47: - 1. Section of this rule is identical to FRCP 47(a) and confers upon the trial court broad discretion in the examination of prospective jurors. Labbee v. Roadway Express, Inc.,  469 F. 2d 169 (C.C.A. 8th, 1972), Kiernan v. Van Schaik,  347 F. 2d 775 (C.C.A. 3rd, 1965). Prior Arkansas law was governed by superseded Ark. Stat. Ann.   39-226 (Repl. 1962), which likewise left the mode and manner of voir dire to the discretion of the trial court. This discretion did not, however, vest the trial court with arbitrary authority to prohibit voir dire by counsel. Missouri Pacific Transp. Co. v. Johnson,  197 Ark. 1129, 126 S.W.2d 931 (1939). In drafting this rule, the Committee intended to vest the trial court with sufficient authority to limit voir dire to a reasonable inquiry, but not to prohibit reasonable voir dire by counsel.  

2. Section (b) is substantially the same as FRCP 47(b) as it existed prior to the 1966 amendments. Prior thereto, the Federal Rule limited alternate jurors to one or two in number, whereas the present Federal Rule permits the court to seat as many as six alternates. The Committee doubted the need for more than two alternates in civil cases in this State and in most court facilities there is insufficient room to seat a large number of alternate jurors. Accordingly, the Committee determined that alternate jurors should be limited to two in number.  

3. Prior Arkansas law was governed by superseded Ark. Stat. Ann.   39-232 (Repl. 1962), which provided that not more than three alternate jurors could be called and impanelled. This rule continues the provisions of superseded Ark. Stat. Ann.   39-234 (Repl. 1962) wherein it provided that one additional peremptory challenge was allowed when alternate jurors were used, but that such additional challenge could be used only against an alternate juror. Thus the only change in Arkansas law effected by Section (b) is the reduction from three to two in the number of alternate jurors which may be used.  

Rule 48. Number of jurors - Verdict.

Where as many as nine out of twelve jurors in a civil case agree upon a verdict, the verdict shall be returned as the verdict of such jury. The parties may, however, stipulate that a jury shall consist of any number less than twelve and that a verdict or finding of a stated majority thereof shall be taken as the verdict or finding of the jury. In any case where a verdict is less than unanimous, all jurors consenting to such verdict shall sign the same. If the verdict is unanimous, then the foreman only shall sign.  

Reporter's Notes to Rule 48: - 1. Rule 48 varies substantially from FRCP 48 and instead follows prior Arkansas law. This rule takes into account Amendment 16 to the Arkansas Constitution which permits nine or more jurors to agree upon a verdict. Under the Federal Rule, a unanimous verdict is required in every case unless the parties have agreed otherwise. Curry v. Moore-McCormick Lines, Inc.,  51 F. R. D. 301 (D.C. N.Y., 1970).  

2. Rule 48 goes further than prior Arkansas statutory law by permitting the parties to stipulate that fewer than twelve jurors may try a case and that a stated majority thereof may return a verdict. Under actual prior practice in this State, juries with fewer than twelve members have been quite common. This practice has not been officially sanctioned previously, however.  

3. This rule continues the requirement that where the verdict is less than unanimous, those consenting must sign the verdict.  

Rule 49. Verdicts and interrogatories.

(a)  General Verdicts and General Verdicts with Interrogatories. The court may require a jury to return only a general verdict which pronounces generally upon all the issues, or the court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict. When the general verdict and the answers are harmonious, the appropriate judgment upon the verdict and answers shall be entered pursuant to Rule 58. When the answers are consistent with each other but one or more is inconsistent with the general verdict, judgment may be entered pursuant to Rule 58 in accordance with the answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered, but the court shall return the jury for further consideration of its answers and verdict or shall order a new trial.  
    (b)  Special Verdicts. The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event, the court may submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of the several special findings which might properly be made under the pleadings and evidence; or it may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue. If in so doing the court omits any issue of fact raised by the pleadings or by the evidence, each party waives his right to a trial by jury of the issue so omitted unless before the jury retires he demands its submission to the jury. As to an issue omitted without such demand, the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict.  

History. Amended May 16, 1983; amended November 8, 1993, effective January 1, 1994

Reporter's Notes to Rule 49: - 1. Rule 49 is substantially the same as FRCP 49 and to prior Arkansas law as embodied in superseded Ark. Stat. Ann.   27-1741.1, et seq. (Repl. 1962). Implicit in the Federal Rule is the right of the trial court to use a general verdict; however, it is believed that less confusion and uncertainty will result if the use of general verdicts is expressly permitted in this rule. Hence, superseded Ark. Stat. Ann.   27-1741.1 (Repl. 1962), is retained in principle in this rule.  

2. Section (b) does not specifically consider the possibility of inconsistent answers to interrogatories submitted to the jury; however, the courts do have the power and authority to rectify inconsistent answers, particularly where the inconsistency is due in part to incorrect instructions to the jury. Stephenson v. College Misericordia,  376 F. Supp. 1324 (D. C. Pa., 1974). The court can ask the jury to reconsider its verdict in an attempt to remove the inconsistency, Alston v. West,  340 F. 2d 856 (C.C.A. 7th, 1965), or order a new trial. Wright v. Kroeger Corp.,  422 F. 2d 176 (C.C.A. 5th, 1970).  

3. Overall, Rule 49 should have little effect on prior Arkansas practice and procedure as it is essentially the same as the prior law.  

Addition to Reporter's Notes, 1983 Amendment: - Rule 49(a) is amended by adding all of the words after the first comma in the first sentence and by adding the remaining sentences. The effect is to add to the Rule provisions for a general verdict accompanied by answers to jury interrogatories.  

Rule 50. Motion for directed verdict and for judgment notwithstanding verdict.

(a)  Motion for Directed Verdict or Dismissal When Made; Effect. A party may move for a directed verdict at the close of the evidence offered by an opponent and may offer evidence in the event that the motion is not granted, without having reserved the right to do so and to the extent as if the motion had not been made. A party may also move for a directed verdict at the close of all of the evidence. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury. In nonjury cases a party may challenge the sufficiency of the evidence at the conclusion of the opponent's evidence by moving either orally or in writing to dismiss the opposing party's claim for relief. The motion may also be made at the close of all of the evidence and in every instance the motion shall state the specific grounds therefor.  
    (b)  Motion for Judgment Notwithstanding the Verdict.   
    (1)  Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.  
    (2)  Not later than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned, such party within 10 days after the jury has been discharged may move for judgment in accordance with his motion for directed verdict. A motion made before entry of judgment shall become effective and be treated as filed on the day after the judgment is entered. If the court neither grants nor denies the motion within 30 days of the date on which it is filed or treated as filed, it shall be deemed denied as of the 30th day.  
    (3)  A motion for a new trial may be joined with a motion for judgment notwithstanding the verdict, or a new trial be prayed in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned, the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.  
    (c)  Same: Conditional Rulings on Grant of Motion.   
    (1)  If the motion for judgment notwithstanding the verdict provided for in subdivision (b) of this rule is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment. In case the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered. In case the motion for a new trial has been conditionally denied, the appellee on appeal may assert error in that denial; and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court.  
    (2)  The party whose verdict has been set aside on motion for judgment notwithstanding the verdict may file a motion for a new trial pursuant to Rule 59 not later than 10 days after entry of the judgment notwithstanding the verdict.  
    (d)  Same: Denial of Motion. If the motion for judgment notwithstanding the verdict is denied, the party who prevailed on that motion may, as appellee, assert grounds entitling him to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for judgment notwithstanding the verdict. If the appellate court reverses the judgment, nothing in this rule precludes it from determining that the appellee is entitled to a new trial or from directing the trial court to determine whether a new trial shall be granted.  
    (e)  Appellate Review.In a jury trial, a party who does not have the burden of proof on a claim or defense must move for a directed verdict based on insufficient evidence at the conclusion of all the evidence to preserve a challenge to the sufficiency of the evidence for appellate review. A party who has the burden of proof on a claim or defense need not make such a motion to challenge on appeal the sufficiency of the evidence supporting a jury verdict
adverse to that party. If for any reason the motion is not ruled upon, it is deemed denied for purposes of obtaining appellate review on the question of the sufficiency of the evidence.

History. Amended May 16, 1983; amended July 9, 1984, effective September 1, 1984; amended December 10, 1990, effective February 1, 1991; amended January 22, 1998; amended January 28, 1999; amended February 10, 2005

Rule 51. Instructions to jury; objection.

At the close of the evidence or at such earlier time as the court may reasonably direct, any party may submit requested jury instructions to the court. The court shall inform counsel of its proposed action upon the requested instructions and also inform counsel of all other instructions it proposes to submit to the jury. The court shall instruct the jury prior to the arguments of counsel. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before or at the time the instruction is given, stating distinctly the matter to which he objects and the grounds of his objection, and no party may assign as error the failure to instruct on any issue unless such party has submitted a proposed instruction on that issue. Opportunity shall be given to make objections to instructions out of the hearing of the jury.  

   A mere general objection shall not be sufficient to obtain appellate review of the court's action relating to instructions to the jury except as to an instruction directing a verdict or the court's action in declining to do so.  

History. Amended May 24, 2001, effective July 1, 2001

Reporter's Notes to Rule 51: - 1. Rule 51 varies materially from FRCP 51 and instead tracks prior Arkansas law. Article 7, Section 23 of the Arkansas Constitution requires trial judges to declare the law and reduce the charge to writing at the request of either party. There was no specific statutory provision under prior Arkansas law which required that a party's requested jury instructions had to be submitted to the court by a certain time. Many courts adopted local rules specifying such time and this rule will have no effect on such local rules, provided, of course, that the time limit specified therein is reasonable.  

2. This rule requires the trial court to inform counsel of the action taken on requested jury instructions and also inform counsel of the instructions which the court intends to submit to the jury. This is to enable counsel to review the instructions to be given and frame such objections thereto as may be desired. Also, this rule continues the prior Arkansas procedure of having jury instructions given prior to the arguments of counsel as provided in superseded Ark. Stat. Ann.   27-1727 (Repl. 1962).  

3. The provisions of this rule concerning objections to instructions are lifted from Rule 13 of the Uniform Rules for Circuit and Chancery Judges [abolished]. Under the Federal Rule, objections may be made at any time prior to the retirement of the jury for deliberations. Under this rule, objections must be made before or at the time the instructions are given.  

Addition to Reporter's Notes, 2001 Amendment: - The word "trial," which modified "court's" the second paragraph, has been deleted in light of Constitutional Amendment 80, which established the circuit courts as the "trial courts of original jurisdiction" in the state and abolished the separate chancery and probate courts.  

Rule 52. Findings by the court.

(a)  Effect. If requested by a party at any time prior to entry of judgment, in all contested actions tried upon the facts without a jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58; and in granting or refusing interlocutory injunctions, the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review. Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence), and due regard shall be given to the opportunity of the circuit court to judge the credibility of the witnesses. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. Findings of fact and conclusions of law are unnecessary on decisions of motions under these rules.  
    (b)  Amendment.   
    (1)  Upon motion of a party made not later than 10 days after entry of judgment, the court may amend its findings of fact previously made or make additional findings and may amend the judgment accordingly. The motion may be made with a motion for a new trial pursuant to Rule 59. A motion made before entry of judgment shall become effective and be treated as filed on the day after the judgment is entered. If the court neither grants nor denies the motion within 30 days of the date on which it is filed or treated as filed, it shall be deemed denied as of the 30th day.  
    (2)  When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the circuit court an objection to such findings or has made a motion to amend them or a motion for judgment.  

History. Amended November 20, 1989, effective January 1, 1990; amended January 28, 1999; amended May 24, 2001, effective July 1, 2001; amended January 22, 2004

Reporter's Notes to Rule 52: - 1. Rule 52 is similar to FRCP 52, but it retains prior Arkansas law by which the failure of a party to request special findings of fact by the court amounted to a waiver of that right. Anderson v. West Bend Co.,  240 Ark. 519, 400 S.W.2d 495 (1966); Doup v. Almand,  212 Ark. 687, 207 S.W.2d 601 (1948).  

2. Prior Arkansas law was codified in superseded Ark. Stat. Ann.   27-1744 (Repl. 1962) which required the trial court to state findings of fact separately from conclusions of law. Where there was any substantial evidence to support the findings of the circuit judge, his decision had to be affirmed on appeal. Fanning v. Hembree Oil Company,  245 Ark. 825, 434 S.W.2d 822 (1968). Under this rule, the findings of the trial judge must be affirmed on appeal unless clearly erroneous, which is the same as clearly against the preponderance of the evidence. The rule, however, does not alter the fact that in some cases an issue must be proved by clear and convincing evidence.  

3. Section (b) does not appreciably change prior Arkansas law, as it has been commonly understood that courts had the inherent power to amend its findings or make additional findings during term time. See Vaughn v. Vaughn,  223 Ark. 934, 270 S.W.2d 915 (1954), although this power was severely restricted after term time to those grounds specified in superseded Ark. Stat. Ann.   29-506 (Repl. 1962).  

4. Under this rule, motions to have the court amend its findings or make additional findings must be filed within ten days after the entry of judgment. This time period cannot be extended by the trial court as provided in Rule 6 herein and in FRCP 6.  

Addition to Reporter's Note, 1989 Amendment: - Rule 52(a) is amended to make clear that the same standard of appellate review applies, regardless of whether a trial court's findings of fact are based on oral or documentary evidence. The corresponding federal rule was so amended in 1985. Prior to that amendment, some federal courts had held that a more searching appellate review was appropriate when the trial court's findings were based solely on documentary evidence.  

Addition to Reporter's Notes, 1999 Amendment: - Subdivision (b) has been divided into two numbered paragraphs. The new third sentence of paragraph (1) makes plain that a pre-judgment motion to amend findings or to make additional findings is permissible. This is so under the corresponding federal rule, but prior Arkansas case law suggested that such a motion was not effective. See Benedict v. National Bank of Commerce,  329 Ark. 590, 951 S.W.2d 562 (1997) (motion for new trial). The new fourth sentence provides that a motion to amend findings or for additional findings not ruled on by the court within 30 days of its filing (or within 30 days of the date it is treated as filed) is "deemed denied as of the 30th day." This provision also appears in Rule 4(b)(1) of the Rules of Appellate Procedure - Civil but was added here as a reminder to counsel.  

Addition to Reporter's Notes, 2001 Amendment: - The references to "trial court" in subdivisions (a) and (b)(2) have been replaced with "circuit court." Constitutional Amendment 80 established the circuit courts as the "trial courts of original jurisdiction" in the state and abolished the separate probate and chancery courts.  

Addition to Reporter's Notes, 2004 Amendment: - Subdivision (a) has been amended to make plain that a request for findings of fact and conclusions of law may be made "at any time prior to entry of judgment." A companion change in subdivision (b)(1) emphasizes that a motion after entry of judgment pursuant to that provision is for a different purpose, i.e., to amend findings "previously made" or to make additional findings. The effect of these changes is to overrule Apollo Coating RSC, Inc. v. Brookridge Funding Corp., 103 S.W.3d 682 (Ark. App. 2003), which held that a motion for findings and conclusions pursuant to Rule 52(a) could be made after entry of judgment.  

Rule 53. Masters.

(a)  Appointment and Compensation. Subject to the limitations contained herein, each court in which an action is pending may appoint a special master therein. As used in this rule, the word "master" includes a referee, an auditor, an examiner, a commissioner and an assessor. The compensation to be allowed a master shall be fixed by the court and shall be charged upon such of the parties or paid out of any fund or subject matter of the action, which is in the custody and control of the court as the court may direct. The master shall not retain his report as security for his compensation; but, when the party ordered to pay the compensation allowed by the court does not pay it after notice and within the time prescribed by the court, the master is entitled to a writ of execution against the delinquent party.  
    (b)  Reference. A reference to a master shall be the exception and not the rule. Reference shall be made in only those cases where there is no right to trial by jury or where such right has been waived. Except in matters of account and difficult computation of damages, a reference shall be made only upon a showing that some exceptional condition requires it.  
    (c)  Powers. The order of reference to a master may specify or limit his powers and may direct him to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the master's report. Subject to the specifications and limitations stated in the order, the master has and shall exercise the power to regulate all proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. He may require the production before him of evidence upon all matters embraced in the reference, including the production of all books, papers, vouchers, documents and writings applicable thereto. He may rule upon the admissibility of evidence unless otherwise directed by the order of reference and has the authority to put witnesses on oath and may himself examine them and may call the parties to the action and examine them upon oath. The master shall cause a record to be made of the evidence offered and excluded.  
    (d)  Proceedings.   
    (1)  Meetings. When a reference is made, the clerk shall forthwith furnish the master with a copy of the order of reference. Upon receipt thereof, unless the order of reference otherwise provides, the master shall set a time and place for the first meeting of the parties or their attorneys to be held within the time specified by the court or otherwise within a reasonable time after receipt of the order of reference. It is the duty of the master to proceed with all reasonable diligence. Either party, on notice to parties and master, may apply to the court for an order requiring the master to speed the proceedings and to make his report. If a party fails to appear at the time and place appointed, the master may proceed ex parte or, in his discretion, adjourn the proceedings to a future day, giving notice to the absent party of the adjournment.  
    (2)  Witnesses. The parties may procure the attendance of witnesses before the master by the issuance and service of subpoenas as provided in Rule 45. If without adequate excuse a witness fails to appear to give evidence, he may be punished as for a contempt and be subject to the consequences, penalties and remedies provided in Rules 37 and 45.  
    (3)  Statement of Accounts. When matters of accounting are in issue before the master, he may prescribe the form in which the account shall be submitted and in any proper case may receive or require in evidence a statement by a certified public accountant who is called as a witness. Upon objection of a party to any of the items thus submitted or upon a showing that the form of statement is insufficient, the master may require a different form of statement to be furnished or the accounts or specific items thereof to be proved by oral examination of the accounting parties or upon written interrogatories or in such other manner as he directs.  
    (e)  Report.   
    (1)  Contents and Filing. The master shall prepare a report upon the matters submitted to him by the order of reference, and, if required to make findings of fact and conclusions of law, he shall set them forth in his report. He shall file the report with the clerk of the court and unless directed by the order of reference shall file with it a transcript of the proceedings and of the evidence and the original exhibits. The clerk shall forthwith mail to all parties notice of the filing.  
    (2)  Effect. The court shall accept the master's findings of fact unless clearly erroneous. Within 20 days after being served with notice of the filing of the report, any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Rule 6(c). The court after hearing may adopt the report or modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.  
    (3)  Stipulation as to Findings. The effect of a master's report is the same whether or not the parties have consented to the reference; but, when the parties stipulate that a master's findings of fact shall be final, only questions of law arising upon the report shall thereafter be considered.  
    (4)  Draft Report. Before filing his report, a master may submit a draft thereof to counsel for all parties for the purpose of receiving their suggestions.  

Reporter's Notes to Rule 53: - 1. Rule 53 represents a merger of various provisions from FRCP 53 and prior Arkansas law. This rule does, however, contain several changes from federal and Arkansas law. The latter was codified as superseded Ark. Stat. Ann.   27-1801, et seq. (Repl. 1962), and permitted a reference to a master only in courts of equity. Under FRCP 53, both legal and equitable issues may be referred to a master regardless of whether a jury is involved. In Re Peterson,  253 U.S. 300, 40 S. Ct. 543 (1920). Under Rule 53, masters may be used in law courts, but only in cases where a jury trial has been waived.  

2. Under this rule and under FRCP 53, the use of masters is the exception and should be used only in rare cases. Arthur Murray, Inc. v. Oliver,  364 F. 2d 28 (C.C.A. 8th, 1966), Adventures in Good Eating, Inc. v. Best Places to Eat, Inc.,  131 F. 2d 809 (C.C.A. 7th, 1942). Masters have been used sparingly in Arkansas although equity courts have had the discretionary power to appoint masters in complex accounting matters. State ex rel. Purcell v. Nelson,  246 Ark. 210, 438 S.W.2d 33 (1969).  

3. Section (c) is substantially the same as FRCP 53(c) and defines the powers possessed by a master. These powers may be restricted by the referring court, but generally the master has the right to conduct hearings as if he were the judge sitting on the case. A record of the proceedings before the master is required under this section whereas the Federal Rule does not require that a record be made unless requested by a party. Superseded Ark. Stat. Ann.   27-1806 (Repl. 1962) made a record mandatory and this requirement is brought forward in this rule.  

4. Section (d) follows the Federal Rule regarding the conduct of the proceedings with the exception of the time limit contained therein. Under the latter, a meeting with the parties on their attorneys must be held within twenty days after the receipt of the referral by the master. Under this rule, the court may specify a time for such meeting and if none is specified, it must be held within a reasonable period of time following the referral.  

5. Omitted from Section (e) of Rule 53 is FRCP 53(e)(3). Since masters are limited to non-jury situations under this rule, the federal provision is inapplicable. Otherwise, Section (e) is substantially the same as its federal counterpart. Under (e)(2), the findings of a master are binding upon the court unless clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the court, on the entire evidence is left with the definite and firm conviction that a mistake has been made by the master. McGraw Edison Co. v. Central Transformer Corp.,  196 F. Supp. 664 (D.C. Ark., 1961); United States v. 620.98 Acres of Land,  255 F. Supp. 427 (D.D. Ark., 1966). The substantial evidence rule is not the test. WRB Corp. v. Geer,  313 F. 2d 750 (C.C.A. 5th, 1963). Under prior Arkansas law, equity courts were not required to accept the master's report. Griffin v. Isgrig,  227 Ark. 931, 302 S.W.2d 777 (1957); Ferguson v. Rogers,  129 Ark. 197, 195 S.W. 22 (1917). Thus, this rule modifies prior Arkansas law by making the master's report mandatory unless it is clearly erroneous. Also, under this rule, a party has twenty days within which to make objection to the report which is an increase over the ten days allowed under FRCP 53.  

6. Sections (e)(3) and (e)(4) are identical to Sections (e)(4) and (e)(5) of the Federal Rule. Superseded Ark. Stat. Ann.   27-1813 (Repl. 1962) provided that a reference to a master by consent of the parties did not make the findings any more conclusive. Under this rule, however, where the parties stipulate as to the binding effect of the master's findings, only questions of law may thereafter be considered.