Arkansas

Warning: The following opinion is provided for purposes of discussion only. We have not Shepardized™ this opinion, and do not know the subsequent disposition of this case nor whether the effect of the opinion has been overruled or superceded by other law.

James Newberry et al. v. George S. Scruggs et al.,
No. CA97-891 (Ark.App. 02/04/1998)

COURT OF APPEALS OF ARKANSAS

February 4, 1998, Opinion Delivered

February 4, 1998, Filed

NOTICE: [*1] NOT DESIGNATED FOR PUBLICATION. PLEASE REFER TO THE ARKANSAS RULES OF COURT.

PRIOR HISTORY: AN APPEAL FROM WASHINGTON COUNTY CHANCERY COURT. NO. 96-1359. HONORABLE THOMAS F. BUTT, CHANCELLOR.

DISPOSITION: APPEAL DISMISSED.

COUNSEL: MARIAN M. MCMULLAN, LITTLE ROCK.

CHARLES S. TRANTHAM, FAYETTEVILLE.

OPINION: EN BANC

PER CURIAM

This appeal must be dismissed because the decree from which it comes is not a final judgment under Rule 2 of the Rules of Appellate Procedure -- Civil. This chancery action originated out of a Washington County Circuit Court lawsuit wherein a writ of execution on real property had been issued. Appellants sought a stay of execution, and issues involving lien priority and equitable subrogation were transferred to the chancery court. Appellants argued in chancery that they should be equitably subrogated to a prior lien holder's rights and that they should have priority over a judgment obtained by appellees regarding the real property. The chancellor denied equitable subrogation to appellants and stated in his letter opinion. "As to the [appellants'] Newberrys' claim of homestead exemption, that is a matter to be taken up and disposed of in the Circuit Court, upon remand of this [*2] equity case to that court from which it came. All further proceedings herein are now remanded to the Circuit Court for disposition." In the final decree, the chancellor stated: "IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the [appellants] are not subrogated to Worthen Bank's position, and that [appellees] Larry and Earlene Baker's judgment lien is superior to the mortgage lien of [appellant] Pulaski and, subject to any proper limitations placed by the Circuit Court on Larry and Earlene Baker's right to enforce their judgment." Although the circuit judge had ordered that, after a ruling on the lien priority and equitable subrogation issues, the matter would be returned to circuit court for further proceedings on the writ of execution, appellants initiated this appeal directly from the chancery court's decision.

For a decree to be final and appealable under Ark. R. App. P. 2, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Lamb v. JFM, Inc., 311 Ark. 89, 842 S.W.2d 10 (1992). The order must be of such a nature as to not only decide the rights of the parties, but to put the court's [*3] directive into execution, ending the litigation or a separable part of it. Doe v. Union Pac. R.R. Co., 323 Ark. 237, 914 S.W.2d 312 (1996). Whether a final order exists is a jurisdictional question that the appellate court has the duty and right to raise in order to avoid piecemeal litigation. Community Dialysis Centers, Inc. v. Mehta, 32 Ark. App. 121, 797 S.W.2d 480 (1990).

Because further proceedings in circuit court are necessary before execution can occur, this is not a final judgment from which an appeal can be taken.

Appeal dismissed.

The legal opinions are a matter of public record (that's how we got them), and as such there can be no defamation for republishing them. Sometimes, however, legal opinions are reversed, vacated, or significantly modified, etc., and we do not discover this fact until somebody points it out to us. As we do not desire to publish inaccurate or outdated information, if a legal opinion has been reversed, vacated, or significantly modified, please advise us of this fact immediately, by fax to (877) 698-0678 or you may also send regular postal correspondence to Riser Adkisson LLP at 1827 Powers Ferry Road, Building One, Suite 200, Atlanta GA 30339.