Schueck Steel, Inc. v. McCarthy Bros. Co.

717 S.W.2d 816, 711 S.W.2d 820, 289 Ark. 436, 1986 Ark. LEXIS 2095

Opinions

Robert H. Dudley, Justice.

Appellant Schueck Steel, Inc. filed suit to foreclose, a lien against appellee McCarthy Brothers Company. The trial court granted a default judgment against appellee. Later, the trial court set aside the default judgment. Appellant appeals, contending that the trial court erred in setting aside the default judgment. We dismiss the appeal because the setting aside of a default judgment is not a final judgment by the trial court. Ark. R. App. P. 2.

We have frequently held that we will not decide the merits of an appeal when the order appealed is not a final one. Fratesi v. Bond, 282 Ark. 213, 666 S.W.2d 712 (1984); Corning Bank v. Delta Rice Mills, Inc., 281 Ark. 342, 663 S.W.2d 737 (1984); Heffner v. Harrod, 278 Ark. 188, 644 S.W.2d 579 (1983); McIlroy Bank & Trust v. Zuber, 275 Ark. 345, 629 S.W.2d 304 (1982); Roberts Enterprises, Inc. v. Arkansas Highway Commission, 277 Ark. 25, 638 S.W.2d 675 (1982). In all of these cases we have stated that in order for a judgment to be appealable, it must dismiss the parties or conclude their rights to the subject matter in controversy. Here, the parties are still before the trial court, and the rights in the subject matter remain to be decided.

717 S.W.2d 816 Owens, McHaney & Calhoun, by: John C. Calhoun, Jr., for appellant. Friday, Eldredge & Clark, by: John Dewey Watson, for appellee.

The appellee does not raise the issue of appealability, but the issue is a jurisdictional one which we raise on our own in order to avoid piecemeal litigation. Hyatt v. City of Bentonville, 275 Ark. 210, 628 S.W.2d 326 (1982).

Appeal dismissed.