McPherson v. Consolidated Casualty Co.

151 S.W. 283, 105 Ark. 324, 1912 Ark. LEXIS 449

• Court: Supreme Court of Arkansas
• Decided: November 18, 1912
• Status: Published

Opinion

Smith, J.,

(after stating the facts). This appeal must be dismissed for the reason that it was prematurely taken.

Cases can not be tried by piecemeal, and one can not delay the final adjudication of a cause by appealing from the separate orders of the court as the cause progresses. When a final order or judgment has been entered in the court below determining the relative rights and liabilities of the respective parties, an appeal may then be taken, but not before. No such final judgment has been entered here, and the appeal must be dismissed.

In the case of Ayers v. Anderson-Tulley Co., 89 Ark. 162, it was said: “It is only from final judgments and decrees which conclude the rights of the parties with respect to the subject-matter, of the controversy that appeals may be taken to this court, and it must be conceded that an order vacating a judgment or granting a new trial made in the term at which the judgment was rendered is not appealable, except on the terms prescribed by the statute.” The statute referred to is section 1188, Kirby’s Digest. And in this case, even if the action of the court below was equivalent to the granting of a new trial, that action of the court could not be reviewed on an appeal “unless the notice of appeal contains an assent on the part of the appellant that, if the order be affirmed, judgment absolute shall be rendered against appellant.” The language quoted is from the second subdivision of section 1188, Kirby’s Digest. No such notice was filed in this case, and for this reason, if for no other, this appeal must be dismissed. And in the case last cited the following language was used in quoting from the case of Huntington v. Finch, 3 Ohio St. 444; “The Ohio court in construing a statute similar to the one prevailing in this State,, with reference to appeals, said: ‘The Court of Common Pleas has ample control over-its orders and judgments during the term at which they are rendered and the power to vacate or modify them in its discretion. But this discretion ends with the term, and no such discretion exists at a subsequent term of the court.’ ” See also Vol. 1 Crawford’s Digest, Appeal and Error, I, d. Womack v. Connor, 74 Ark. 354; Gates v. Solomon, 73 Ark. 8; Osborn v. LeMair e, 82 Ark. 490; Sanders v. Plunkett, 40 Ark. 507; Mallett v. Hampton, 94 Ark. 119.

Appeal dismissed.