Piercy v. Baldwin

• Decision Date: 08 March 1943
• Docket Number: 4-6996
• Citation: 168 S.W.2d 1110,205 Ark. 413
• Parties: PIERCY v. BALDWIN
• Court: Arkansas Supreme Court

168 S.W.2d 1110

205 Ark. 413

PIERCY v. BALDWIN

4-6996

Supreme Court of Arkansas

March 8, 1943

Appeal from Little River Circuit Court; Minor W. Millwee, Judge dismissed.

Appeal dismissed.

John J DuLaney, for appellant.

Carlton & Goodson, for appellee.

HOLT J. MCFADDIN, J., dissents.

OPINION

HOLT J.

Appellant, C. R. Piercy, on May 1, 1942, brought an ejectment suit against appellees, Mrs. Ethel P. Baldwin, Lillian Baldwin, Luther Baldwin and Lois Baldwin, his wife.

July 6, 1942, appellee, Lois Baldwin, on behalf of herself and the other defendants (appellees here), filed "motion to stay proceedings." In this motion she alleged that she is the wife of appellee, Luther Baldwin, and that he "is in the military services of the United States; that he cannot be present at this term of this court to defend this action; that this is a suit in ejectment against all of the defendants who are now in the possession of lots 1 and 2, block 42, town of New Rocky Comfort, Little River county, Arkansas; that they reside on said property; that this defendant and Walter Luther Baldwin III are dependents of said Luther Baldwin and occupy said premises hereinabove described as their dwelling; that this cause should be stayed under the provisions of § 521 of the Soldiers' and Sailors' Civil Relief Act of 1940, approved October 17, 1940." Section 1, 54 Stat. at L., p. 1178.

Her prayer was that proceedings in the cause be stayed "during the period of military service of the said Luther Baldwin and for three months thereafter and for all other relief to which she may be entitled."

There was a response, filed by appellant, interposing a denial of all material allegations set forth therein.

Upon a hearing the court sustained the motion to stay proceedings as to appellees, Lois Baldwin and Luther Baldwin, whereupon appellant filed motion for permission to proceed to trial as to defendants, Mrs. Ethel P. Baldwin and Lillian Baldwin. This motion was overruled by the court, and from the court's finding and order on these motions we quote the following: "Lois Baldwin is a defendant in the above styled cause as is her husband, Luther Baldwin; that the said Luther Baldwin is in the military service of the United States; that the premises in litigation in this cause is the dwelling place of the said Lois Baldwin and her minor child and is also the dwelling place of Mrs. Ethel P. Baldwin, mother of the said Luther Baldwin, and Lillian Baldwin, sister of the said Luther Baldwin; and that all other defendants are unable to defend in this action by reason of the absence of the said Luther Baldwin and that the proceedings in said cause should be stayed under the provisions of said Soldiers' and Sailors' Civil Relief Act.

"It is therefore considered, ordered and adjudged that all proceedings in this cause be and the same are hereby stayed under the provisions of the said Soldiers' and Sailors' Civil Relief Act approved October 17, 1940. Whereupon, the plaintiff moves the court for the privilege of proceeding against the defendants, Mrs. Ethel P. Baldwin and Lillian Baldwin, which motion is by the court overruled and to both orders the plaintiff excepts and moves for a rehearing of said cause which is by the court overruled, to which action by the court plaintiff excepts. Whereupon plaintiff prays and is granted an appeal to the Supreme Court and is allowed ninety days from this date in which to prepare and file a bill of exceptions."

For reversal here appellant argues, first, that the trial court abused its discretion in granting appellee's motion for a stay of proceedings, and in any event there was abuse of discretion and error in denying appellant's motion to permit him to proceed to try the cause as to the co-defendants, Mrs. Ethel P. Baldwin and Lillian Baldwin.

We can not decide these questions for the reason that the appeal has been prematurely brought...