Harlow v. Mason

• Decision Date: 15 March 1915
• Docket Number: 251
• Citation: 174 S.W. 1163,117 Ark. 360
• Parties: HARLOW v. MASON
• Court: Arkansas Supreme Court

174 S.W. 1163

117 Ark. 360

HARLOW v. MASON

No. 251

Supreme Court of Arkansas

March 15, 1915

Appeal from Fulton Circuit Court; R. E. Jeffrey, Judge on exchange appeal dismissed.

Appeal dismissed.

Emerson & Smith, and C. E. Elmore, for appellant.

James M. Mason, pro se, and Geo. T. Black, for appellee.

The mere quashing of a summons is not a final order or judgment and is not appealable. 34 Neb. 5, 51 N.W. 299; 109 N.W. 752; 31 Kan. 218; 43 S.W. 436; 102 Ky. 370; 77 Ill.App. 203; 406 N.E. 1073; 166 Ill. 451; 103 S.W. 1134, 83 Ark. 371; 138 S.W 876; 144 S.W. 522; 14 Ark. 424; 85 P. 626, 30 Utah 449; 52 S.E. 64, 139 N.C. 446; 149 F. 406; 42 So. 610; 132 F. 414; 164 F. 492; 59 S.E. 1055; 60 S.E. 136; 53 So. 503; 72 S.E 189; Id. 515.

OPINION

SMITH, J.

Appellant was the plaintiff below and sued for damages on account of an alleged libel. The parties to the litigation are both residents of the State of Kansas, and a suit was brought by appellee in that State to restrain appellant from prosecuting his suit in this State. A decision adverse to the contention of appellee was rendered by the Supreme Court of Kansas. Mason v. Harlow, 91 Kan. 807, 139 P. 384. Upon the conclusion of the litigation in that State, appellee filed a motion in the court below to quash the service of summons, for the reason, among others, that the person who served the summons was not authorized so to do. Upon the hearing of this motion the court entered the following order: "And the court after hearing the evidence adduced and being fully advised in the law arising herein, doth find the issues in favor of the defendant, J. M. Mason, and quash the service of the summons herein for the reason that said service so made by the sheriff was false and irregular and doth quash the same." This was the only order made by the court except to note appellant's exception to its action. The cause was not dismissed nor was any judgment rendered for costs. This appeal has been duly prosecuted from the above order.

A number of questions are discussed in the briefs and, among others, the question of the finality of the judgment appealed from, and we find it necessary to consider only that question.

"A judgment to be final must dismiss the parties from the court, discharge them from the action or conclude their rights to the subject-matter in controversy." Bank of the State v. Bates, 10 Ark. 631; Campbell v. Sneed, 5 Ark. 398.

Section 1188, Kirby's Digest, provides that the Supreme Court shall have appellate jurisdiction over the final orders, judgments and determinations of all inferior courts of the State, and the subdivisions of that section undertake to define the conditions under which an appeal may be prosecuted. There are a multitude of cases among our own decisions discussing the question of the finality Of judgments, and the right to appeal therefrom.

There is a conflict in the authorities as to whether an order of a court quashing a summons is such a final order as that an appeal will lie, and there is some apparent conflict in the early decisions of this court upon that question. Some cases bearing upon that question are Bank of the State v. Bates, 10 Ark. 631; Hatheway v. Jones, 20 Ark. 109; State v. Vaughan, 14 Ark. 424.

In the case of Bank of the State v. Bates, supra, the syllabus is: "Motion to quash the writ of summons for want of a seal; judgment that writ be quashed, and defendants recover of plaintiff their costs, etc.; held, that this was a final judgment to which a writ of error would lie." The opinion in that case reviewed certain opinions of this court bearing upon that subject and concluded the discussion of the effect of those cases with the following statement: "In both of these cases, however, as well as in that of the State, use etc., v. Adams et al., it was decided that the legal effect of the judgment quashing the writ was a dismissal of the case. This being the effect of the judgment, the parties are necessarily dismissed from the court, and unless the decision of the circuit court is reversed, or set aside, there is no remedy afforded them.

"We must not be understood as deciding that, in every instance where the writ is irregular or merely voidable, and the defect is pointed out, the judgment must necessarily have the effect to dismiss the action. There are very many defects which are amendable and others which amount only to temporary disabilities. Thus it is held in 1 Chit. Pl. 466, 'That the judgment for the defendant on a plea in abatement, whether it be on an issue of fact or law, is that the writ be quashed; or if a temporary disability be pleaded, that the plaint remain without day until, ' etc."

The same judge who delivered that opinion delivered the opinion of the court in the case of State v. Vaughan, in which case the syllabus is as follows: "A judgment quashing a writ of scire facias upon a forfeited recognizance, it not a final judgment, from which an appeal lies to this court. The plaintiff having the right to sue out an ualias, the case was not out of court by the quashal of the writ; and unless she would elect to proceed no further, but resting upon her exception, suffer a judgment dismissing the suit, the decision quashing the writ is merely interlocutory."

The case of Hatheway v. Jones, supra, refers to the cases last mentioned and, without undertaking to overrule either of them, treats them as if there was no conflict between them. The syllabus in the case of Hatheway v. Jones, is as follows: "An appeal will lie from the judgment of the circuit court quashing the writ and giving the defendant costs." And in the opinion in that case it was said: "When the writ is quashed on motion, or on plea in abatement of the writ, the effect of the judgment is to dismiss the defendant from the court, and, for the time, discharge him from the action. The plaintiff can proceed no further in the cause until he brings the defendant again into court by the issuance and service of an alias writ. Adams et al. v. State, 4 Eng. 33. The declaration remains in court, it is true, but a declaration without a writ, is no suit, unless the defendant enter his appearance.

"On the quashing of the writ, the plaintiff may take an alias, if he chooses, and thereby waive objection to the judgment of the court. But it will not do to say that he must take an alias--that he can not rest upon the quashal of the writ, and appeal from, or take a writ of error to the judgment of the court. Because the court might, in many cases, by erroneously quashing the writ, prejudice the rights of the plaintiff. As, for example, where property is attached under a writ, it would be released upon the quashal of the writ, and the sheriff might not be able, under an alias writ, to find it again.

"We think, upon the quashing of the writ, the plaintiff may elect to take an alias, or rest, and take an appeal or writ of error. If the judgment is reversed, he is restored to his rights under the writ; if it is affirmed, he can then take out an alias, and proceed with the cause, if he thinks proper."

It thus appears that the action of the trial court in quashing the writ was regarded by the Supreme Court as in effect dismissing the defendant from the court, and this idea seems also to have influenced the court in its decision in the case of Bank of the State v. Bates, supra.

In the instant case the summons was not quashed, but only the return made thereon. No order of dismissal was made by the court and no judgment, even for costs, was rendered. In these respects the instant case is distinguishable from the cases cited. Moreover, it must be borne in mind that the rigidity of the rules of pleading has been much...