String v. Kazi

Supreme Court of Arkansas

String v. Kazi

846 S.W.2d 649, 312 Ark. 6, 1993 Ark. LEXIS 80

CourtSupreme Court of Arkansas

DecidedFebruary 8, 1993

Docket92-826

StatusPublished

Cited by12 cases

This text of 846 S.W.2d 649 (String v. Kazi) 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

String v. Kazi, 846 S.W.2d 649, 312 Ark. 6, 1993 Ark. LEXIS 80 (Ark. 1993).

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Opinion

Robert H. Dudley, Justice.

The plaintiff filed this suit on January 22,1992, and service of process was had on January 27, 1992. On February 19, 1992, the defendant filed an answer and counterclaim that is in the nature of a set-off. On February 21, 1992, the trial court granted a default judgment for the full amount of damages prayed. The defendant moved to have the default judgment set aside, and the plaintiff moved to strike the counterclaim. On April 17,1992, which was within ninety days of the default judgment, the trial court refused to set aside the default judgment as to liability, but did set it aside as to damages and refused to strike the counterclaim. The defendant seeks to appeal, even though the issue of damages and the counterclaim remain to be tried before there can be a final order.

We have frequently held that we will not decide the merits of an appeal when the order appealed from is not a final order. Sevenprop Assocs. v. Harrison, 295 Ark. 5, 746 S.W.2d 51 (1988); Tapp v. Fowler, 288 Ark. 70, 702 S.W.2d 17 (1986); McIlroy Bank and Trusty. Zuber, 275 Ark. 345, 629 S.W.2d 304 (1982). In each of these cases we 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.

Appeal dismissed.

Hays and Corbin, JJ., dissent.

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Robert H. Dudley, Justice.

The plaintiff filed this suit on January 22,1992, and service of process was had on January 27, 1992. On February 19, 1992, the defendant filed an answer and counterclaim that is in the nature of a set-off. On February 21, 1992, the trial court granted a default judgment for the full amount of damages prayed. The defendant moved to have the default judgment set aside, and the plaintiff moved to strike the counterclaim. On April 17,1992, which was within ninety days of the default judgment, the trial court refused to set aside the default judgment as to liability, but did set it aside as to damages and refused to strike the counterclaim. The defendant seeks to appeal, even though the issue of damages and the counterclaim remain to be tried before there can be a final order.

We have frequently held that we will not decide the merits of an appeal when the order appealed from is not a final order. Sevenprop Assocs. v. Harrison, 295 Ark. 5, 746 S.W.2d 51 (1988); Tapp v. Fowler, 288 Ark. 70, 702 S.W.2d 17 (1986); McIlroy Bank and Trusty. Zuber, 275 Ark. 345, 629 S.W.2d 304 (1982). In each of these cases we 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.

Appeal dismissed.

Hays and Corbin, JJ., dissent.

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Bluebook (online)

846 S.W.2d 649, 312 Ark. 6, 1993 Ark. LEXIS 80, Counsel Stack Legal Research, https://law.counselstack.com/opinion/string-v-kazi-ark-1993.

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