Elardo v. Taylor

Supreme Court of Arkansas

Elardo v. Taylor

726 S.W.2d 1, 291 Ark. 503, 1987 Ark. LEXIS 1997

CourtSupreme Court of Arkansas

DecidedMarch 23, 1987

Docket86-221

StatusPublished

Cited by4 cases

This text of 726 S.W.2d 1 (Elardo v. Taylor) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Elardo v. Taylor, 726 S.W.2d 1, 291 Ark. 503, 1987 Ark. LEXIS 1997 (Ark. 1987).

Pincite

Opinion

Jack Holt, Jr., Chief Justice.

Appellants, Sam Elardo and Edward Richmond, and appellee, Mike Taylor, were jointly and severally liable to First National Bank for a $53,146.43 judgment entered on a promissory note they had given the bank. Taylor paid the judgment in its entirety, received a court order assigning the judgment from the bank to him, and began executing on the judgment against the appellants. The appellants made a motion to the trial court to stay execution and, ultimately, to vacate the judgment, because of continuing legal controversies between the appellants and Taylor arising from the same transaction, which they argued could provide a defense to the judgment. The trial court denied the motion, holding the assignment was valid under Ark. Stat. Ann. § 29-123 (Repl. 1979). The court stated, however, that it would grant a hearing on any defenses the appellants could assert to Taylor’s enforcement of the judgment. Because the order is not a final appealable order under Ark. R. App. P. 2, we dismiss the appeal.

“It is well established that before a judgment is final and appealable it must dismiss the parties from the court, discharge them from their action or conclude their rights to the subject matter in controversy.” McIlroy Bank & Trust v. Zuber, 275 Ark. 345, 629 S.W.2d 304 (1982). See Ark. R. App. P. 2(a)(2).

The appellants are not appealing from the judgment itself as entered in favor of First National Bank, but from the denial of the motion to set aside the assignment of the judgment. The assignment is only part of an ongoing lawsuit between these parties stemming from the dissolution of the corporation created by Taylor and the appellants. The appellants also have a petition for judgment pending against Taylor in the same case and involving the same transaction. For these reasons, and because the trial court said it would hear any defenses the appellants had to the judgment, the order is not final and appealable.

Appeal dismissed.

Free access — add to your briefcase to read the full text and ask questions with AI

Jack Holt, Jr., Chief Justice.

Appellants, Sam Elardo and Edward Richmond, and appellee, Mike Taylor, were jointly and severally liable to First National Bank for a $53,146.43 judgment entered on a promissory note they had given the bank. Taylor paid the judgment in its entirety, received a court order assigning the judgment from the bank to him, and began executing on the judgment against the appellants. The appellants made a motion to the trial court to stay execution and, ultimately, to vacate the judgment, because of continuing legal controversies between the appellants and Taylor arising from the same transaction, which they argued could provide a defense to the judgment. The trial court denied the motion, holding the assignment was valid under Ark. Stat. Ann. § 29-123 (Repl. 1979). The court stated, however, that it would grant a hearing on any defenses the appellants could assert to Taylor’s enforcement of the judgment. Because the order is not a final appealable order under Ark. R. App. P. 2, we dismiss the appeal.

“It is well established that before a judgment is final and appealable it must dismiss the parties from the court, discharge them from their action or conclude their rights to the subject matter in controversy.” McIlroy Bank & Trust v. Zuber, 275 Ark. 345, 629 S.W.2d 304 (1982). See Ark. R. App. P. 2(a)(2).

The appellants are not appealing from the judgment itself as entered in favor of First National Bank, but from the denial of the motion to set aside the assignment of the judgment. The assignment is only part of an ongoing lawsuit between these parties stemming from the dissolution of the corporation created by Taylor and the appellants. The appellants also have a petition for judgment pending against Taylor in the same case and involving the same transaction. For these reasons, and because the trial court said it would hear any defenses the appellants had to the judgment, the order is not final and appealable.

Appeal dismissed.

Cite This Page — Counsel Stack

Bluebook (online)

726 S.W.2d 1, 291 Ark. 503, 1987 Ark. LEXIS 1997, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elardo-v-taylor-ark-1987.

Opinion

Related

Cite This Page — Counsel Stack