Mallett v. Hampton

• Decision Date: 28 February 1910
• Citation: 126 S.W. 92,94 Ark. 119
• Parties: MALLETT v. HAMPTON
• Court: Arkansas Supreme Court

126 S.W. 92

94 Ark. 119

MALLETT v. HAMPTON

Supreme Court of Arkansas

February 28, 1910

Appeal from Dallas Circuit Court; Henry W. Wells, Judge; appeal dismissed.

Appeal dismissed.

Robert Martin and Miles & Wade, for appellant.

T. B Morton and Rose, Hemingway, Cantrell & Loughborough, for appellees.

OPINION

FRAUENTHAL, J.

This is an appeal from the order of the judge of the Dallas Circuit Court, made in vacation, sustaining a demurrer to a petition praying for a writ of certiorari.The purpose of the petition was to secure the issuance of a writ of certiorari directed to the clerk of the county court of Dallas County ordering him to send up a copy of the records and papers relating to the removal of the county seat of said county from Princeton to Fordyce; and seeking to set aside and quash the orders of the county court in said matter relative to the removal of said county seat.Upon the presentation of the petition to the circuit judge the parties appearing in this court as appellees were allowed to be made partiesdefendants to the petition; and thereupon they filed a demurrer thereto.The circuit judge in vacation proceeded to hear said demurrer, and sustained same.The judge thereupon made an order in which it is stated that, the petitioner"refusing to amend or plead further, it was ordered and adjudged that the petition be dismissed."And from that determination and order of the judge in vacation the petitioner prosecutes this appeal.

It is provided by section 1188 of Kirby's Digest that "the Supreme Court shall have appellate jurisdiction over the final orders, judgments and determinations of inferior courts."Appeals therefore will only lie to this court from the final judgment or decree of an inferior court, and not from any order, judgment or decree made out of court by a judge.In a case of Ex parte Batesville & Brinkley Rd Co., 39 Ark. 82, it is said: "We understand that the framers of our Constitution, when they speak of 'appellate jurisdiction,' meant the review by a superior court of the final judgment, order or decree of some inferior court.This, if not its common-law sense, was the statutory definition of an appeal, and its signification in the acceptation of American courts at the time of the adoption of the Constitution."In the case of Sanders v. Plunkett,40 Ark. 507, a petition was presented to this court asking a writ of certiorari to bring up and quash the proceedings and order of a chancellor in vacation dissolving an injunction which he had previously issued in vacation.In that casethe court said: "Whatever may be the practical result respecting the facts, we cannot regard any mere interlocutory order of a judge at chambers made in a cause as final in the sense of being subject to appeal.There must be a final order of the court itself upon the rights of the parties."In that case it was urged that the action was final for all practical purposes, and that great injustice would be done to await the action of the court, and that this court should proceed by virtue of its general supervisory powers.In passing upon that contention the court said: "The result of this doctrine, once admitted, would be that in all cases where the object of the bill would be accomplished by obtaining or defeated by the refusal of an interlocutory injunction, an application...