McPherson v. Consolidated Casualty Co.

• Decision Date: 18 November 1912
• Citation: 151 S.W. 283
• Parties: McPHERSON v. CONSOLIDATED CASUALTY CO.
• Court: Arkansas Supreme Court

Page 283

151 S.W. 283

McPHERSON v. CONSOLIDATED CASUALTY CO.

Supreme Court of Arkansas.

November 18, 1912.

Appeal from Circuit Court, Craighead County; W. J. Driver, Judge.

Action by J. M. McPherson, administrator of Albert McPherson, against the Consolidated Casualty Company. From an order setting aside a default judgment, plaintiff appeals. Dismissed.

J. M. McPherson, as administrator of the estate of Albert McPherson, deceased, sued the Consolidated Casualty Company and the sureties upon the bond which it gave to do business in this state in the Craighead circuit court upon a certain policy of insurance set out in the complaint. It was alleged that plaintiff's intestate was entitled to certain indemnities on account of his illness prior to his death. The defendant failed to answer or otherwise plead, and on the fourth day of the term the court awarded judgment for the want of an answer for the amount sued for. Defendant's attorney, who lived at Pine Bluff, filed an affidavit in which he stated that he had never practiced in the Craighead circuit court, and was unacquainted with the terms of that court; that he had made inquiry, and had been misled as to the date of this court. The plaintiff, however, was in no manner responsible for this misapprehension. On the day of filing this affidavit, the defendant also filed an answer controverting all the material allegations in the complaint and specially pleaded as a bar to any recovery the intestate's failure during his illness to have reports made as, it alleged, was required by the terms of the policy of insurance. It also alleged that in the lifetime of the intestate it had paid to him all sums of money for which it could be liable under the policy. The court below treated this answer as a motion to vacate, and set aside the default judgment, and entered an order to that effect. Plaintiff excepted to the action of the court setting aside the default judgment and prayed an appeal, which was granted.

Basil Baker, of Jonesboro, for appellant. Hawthorne & Hawthorne, of Jonesboro, and Danaher & Danaher, of Pine Bluff, for appellee.

SMITH, J. (after stating the facts as above).

This appeal must be dismissed for the reason that it was prematurely taken. Cases cannot be tried by piecemeal, and one cannot delay the final adjudication of a cause by appealing from the separate order of the court as the cause progresses. When a final order or judgment has been entered in the court below determining the relative right and liabilities of the respective parties, an appeal may then be taken, but not before. No such final...