Radford v. Samstag

Smith, J., (after stating the facts). It will be observed -that the order of the court which appellant says is res judicata was not one sustaining a demurrer and dismissing a complaint, but was one overruling a demurrer and allowing thirty days in which to file an answer. The cause was then continued for the term. This was not a final order, and did not adjudge the rights of the parties, and there was nothing to prevent the court from reconsidering the demurrer, while said cause was still pending and undisposed of 'before him, and from changing his opinion and decision if he saw proper to do so. In the case of Luttrell v. Reynolds, 63 Ark. 254, it was held that an order sustaining a demurrer and entering a judgment of dismissal thereon is final and conclusive until reversed on appeal. It was so held, because such order was an adjudication of the rights of the parties. But in the case of Adams v. Primmer, 102 Ark. 380, it was said that “where a trial court sustained a demurrer to a complaint, without entering any further order or judgment, its action was not final, and the order can not he appealed from.” To the same effect are the cases of Atkins v. Graham, 99 Ark. 496, and Moody v. J., L. C. & E. Ry. Co., 83 Ark. 371. In the ease of Atkins y. Graham, supra, it was said: “The order simply sustaining the demurrer to the complaint did not finally determine the merits of the ease, and was not a final judgment. An appeal only lies in this court from a final judgment of the lower court. ’ ’ The chancery court in overruling the demurrer did not adjudge the rights of the parties, and consequently there was no final order from which an appeal could be taken. We think appellee’s position that the chancery court was without jurisdiction was well taken because appellant had a complete remedy at law. Wood v. Stewart, 81 Ark. 41; Wadkins v. Merchants Bank of Vandervoort, 96 Ark. 465, and eases there cited. But the failure of appellant to proceed in the proper court was no ground for dismissal of his complaint, and the cause should have been transferred to the circuit court, had a cause of action been stated in the complaint. Wood v. Stewart, supra. But the chancery court properly dismissed the complaint because it did not in fact state a cause of action. It was not alleged that any fraud had been practiced upon the circuit court in procuring the dismissal of the appeal from the justice of the peace, and if the action of the circuit court in dismissing the appeal was erroneous, appellant’s remedy was by appeal to this court, from that order. The decree of the chancellor is therefore affirmed.