Richard O. GOODEN, Jr. v. STATE of Arkansas

CR 97-123                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
              Opinion delivered September 11, 1997


1.   Appeal & error -- motion to set aside order not timely. -- The supreme
     court held that appellant's motion to set aside a circuit
     court order was not filed within the ninety-day limitation
     period of Ark. R. Civ. P. 60 and therefore was not timely.

2.   Appeal & error -- trial court did not err in declining to set aside
     judgment -- appeal dismissed. -- Where appellant did not argue that
     the limitations period was tolled by fraudulent concealment
     and made no allegations of factual circumstances that could be
     interpreted as fraud, the supreme court dismissed the appeal,
     holding that under Ark. R. Civ. P. 60(c)(4), the trial court
     did not err in declining to set aside the judgment in
     question.


     Appeal from Faulkner Circuit Court; Lance Hanshaw, Judge;
appeal dismissed.
     Kenneth G. Fuchs, for appellant.
     Marcus Vaden, Deputy Prosecuting Att'y, for appellee.

     Ray Thornton, Judge.
     This case arises from an order of contempt out of Faulkner
County.  The Faulkner County Circuit Court denied appellant's
motion to recall and vacate an order that set aside a previously
issued order holding Faulkner County in contempt of court.  It is
from that denial that appellant brings this appeal.
     Appellant, Richard Gooden, seeks a review of the February 27,
1996, action of the Faulkner County circuit court in setting aside
its order of February 26, 1996, which had imposed a penalty of
$200.00 per day on Faulkner County to run from February 23, 1996,
until such time as Faulkner County paid appellant the sum of $22,
309.35.  The court had previously ordered that sum to be paid on or
before February 23, 1996.
     On June 19, 1996, 112 days later, appellant filed his motion
to set aside the February 27 order.  We have determined that the
challenge to the February 27 order was not filed within the ninety-
day limitation period of Ark. R. Civ. P. 60, and therefore was not
timely.
     Appellant alleges that Faulkner County perpetrated fraud on
the court by representing itself as the State in several filed
documents.  It appears that the authority of the prosecuting
attorney of Faulkner County was addressed to the court as Faulkner
County, which is a political subdivision of the State of Arkansas.
Appellant does not argue that the limitations period was tolled by
fraudulent concealment; furthermore, there are no allegations of
factual circumstances that could be interpreted as fraud.  See,
Ark. R. Civ. P. 60(c)(4).  Under our rules, the trial court did not
err in declining to set aside the February 27 judgment.
Appeal dismissed.