Beloate v. Smith

204 S.W.2d 908, 212 Ark. 39, 1947 Ark. LEXIS 636

• Court: Supreme Court of Arkansas
• Decided: October 13, 1947
• Docket: 4-8256
• Status: Published

Opinion

Robins, J.

Examination of the transcript discloses that there has been no final judgment or other appeal-able order in this case. Begun as an ejectment suit by W. E. Beloate as executor and devisee of S. R. Beloate, deceased, it was transferred to the chancery court on motion of appellee Tizzie Smith, who was the original defendant below.

Two orders made below (in addition to order transferring the cause to equity) are shown in the transcript.

One of these is an order eliminating from the complaint W. E. Beloate as executor. This order was not a final one, because W. E. Beloate, individually, was the real party in interest and his rights were in no manner affected by the executor being removed from the litigation.

The other order was one sustaining the motion of appellee to strike an amendment to the complaint. This amendment in reality was a statement of legal conclusions which appellant sought to have drawn from the evidence, and, if these conclusions were justified, the chancery court on final hearing might, in the absence of such amendment, have treated the complaint as having been amended to conform to the proof. After this amendment was stricken appellant’s original complaint still remained for disposal. Therefore, this order was not final or appealable.

Since the lower court has made no final order in this case, it is not properly here. Reynolds v. Craycraft, 26 Ark. 468; Lee v. Black, 27 Ark. 336; Davis v. Hale, 114 Ark. 426, 170 S. W. 99, Ann. Cas. 1916D, 701; Durben v. Montgomery, 144 Ark. 153, 221 S. W. 855, 223 S. W. 17; Harvey v. Marr, 173 Ark. 90, 291 S. W. 981.

The motion of appellees to dismiss the appeal will, therefore, be sustained.