Dorazio v. Davis
| Decision Date | 25 June 1984 |
| Docket Number | No. CA,CA |
| Citation | 671 S.W.2d 173,283 Ark. 65 |
| Parties | Virginia DORAZIO, Appellant, v. Nettie Pauline Dortch DAVIS, Appellee. 84-146. |
| Court | Arkansas Supreme Court |
Rose Law Firm, by Kenneth R. Shemin and Richard T. Donovan, Little Rock, for appellant.
John P. Corn, Little Rock, for appellee.
The plaintiff, Nettie Pauline Dortch Davis, and the defendant, Virginia Dorazio, are sisters who are tenants in common of certain lands inherited from their father, Robert L. Dortch. In August, 1978, Mrs. Davis brought this partition suit in the Lonoke Chancery Court with regard to 110 acres of the common property, the complaint alleging that the land could not be divided in kind and asking that it be sold. Mrs. Dorazio's answer admitted the cotenancy but asserted that the parties were in such unequal bargaining positions that a partition by sale would be oppressive.
After a hearing on May 24, 1979, the chancellor entered a decree on September 5, 1980, ordering partition and appointing three commissioners to divide the land in kind if possible and, if not, to report back to the court. After a long delay the commissioners reported on June 3, 1983, that the 110 acres cannot be divided in kind for a number of reasons, one being that there is a large house on the land. The chancellor approved the report on the same day and ordered a sale. Mrs. Dorazio, however, filed a pleading objecting to the proposed sale, asserting that the commissioners' report was merely advisory, and asking that she be given an opportunity "to present evidence to refute the Report of the Commissioners as is her right."
Chancellor Jim Hannah set the matter for a hearing on July 21, 1983. Counsel for the plaintiff appeared with the commissioners, prepared to defend their finding that the 110 acres cannot be divided in kind, but opposing counsel offered no testimony to the contrary, despite the request for an opportunity to do so. Instead, counsel merely stated, with no supporting proof or offer of proof, that the 110 acres comprised only part of the land owned in common by the two sisters, and "our position is that if partition is required, we want and we think we are entitled as a matter of law the entire acreage owned as tenants in common be partitioned, and that's simply our position today." The trial judge expressed his inability to understand why the point had not been raised four years earlier. His ensuing order found that the defendant had been given the opportunity to present evidence and had declined, denied the motion to stay the sale, and set a new date for the sale. The defendant filed a notice of appeal to the Court of Appeals and obtained a stay in the trial court by making a supersedeas bond.
When the record was filed on the last day of the full seven months allowed by law, the appellant filed with it a motion to remand the case for a new trial, on the ground that a transcript of the hearing held in June, 1979, could not be obtained. In opposing the motion to remand, the appellee argues that notice of appeal should have been given within 30 days after partition was ordered in September, 1980. The appellee has also filed a motion to affirm as a delay case. The Court of Appeals certified both motions to us, as involving the construction of procedural rules and statutes. Rule 29(1)(c).
Both motions must be denied.
First, the motion to remand. The notice of appeal was timely, for the 1980 order appointing commissioners was not a final order. Hence the notice of appeal filed in 1983 brings up for review earlier interlocutory orders in the case.
Even so, nothing would be accomplished by a remand. It must be emphasized that an admitted cotenant has an absolute right to a partition of the property. Ward v. Pipkin, 181 Ark. 736, 27 S.W.2d 523 (1930). Mrs. Dorazio originally opposed the partition because the parties' bargaining positions were supposedly unequal, but we have...
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Looney v. Looney
...is not a final order from which an appeal can be taken. See Bell v. Wilson, 298 Ark. 415, 768 S.W.2d 23 (1989); Dorazio v. Davis, 283 Ark. 65, 671 S.W.2d 173 (1984). In Bell, the appellants sought the sale of land with proceeds divided among the joint venturers. One defendant counterclaimed......
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Rigsby v. Rigsby, 99-1126
...Ann. §§18-60-412 et seq. (1987; Looney v. Looney, supra; see also Bell v. Wilson, 298 Ark. 415, 768 S.W.2d 23 (1989); Dorazio v. Davis, 283Ark. 65, 671 S.W.2d 173 (1984)(declaring that an initial order of partition is not a final order from which an appeal may be taken). Further, there was ......
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Bell v. Wilson, 88-306
...have been prosecuted." See Branstetter v. Branstetter, 130 Ark. 301, 197 S.W. 688 (1917). However, more recently in Dorazio v. Davis, 283 Ark. 65, 671 S.W.2d 173 (1984), we recognized that a decree ordering partition either in kind or by a sale and division of the proceeds is not a final or......