Opinion
No. 4-8256
Opinion delivered October 13, 1947. Rehearing denied November 10, 1947.
1. PARTIES. — B being a party to the action both individually and as executor, the removal of him as executor in no way affected his rights as an individual and was, therefore, not an appealable order. 2. PLEADING — ORDER STRIKING AMENDMENT TO COMPLAINT. — An amendment to the complaint consisting of legal conclusions only which appellant sought to have drawn from the evidence was properly stricken. 3. JUDGMENTS — FINAL ORDERS. — Since after the amendment to the complaint was stricken, the original complaint remained and the court could have treated it as amended to conform to the proof, the order striking the amendment was not final or appealable. 4. APPEAL AND ERROR. — There being no final or appealable order, the appeal will be dismissed.
Appeal from Clay Chancery Court, Western District; Francis Cherry, Chancellor; dismissed
W. P. Smith, W. E. Beloate and Roy Richardson, for appellant.
Bryan J. McCallen, J. L. Taylor and E. G. Ward, for appellee.
Examination of the transcript discloses that there has been no final judgment or other appealable order in this case. Begun as an ejectment suit by W. E. Beloate as executor and devisee of S. R. Beloate, deceased, it was transferred to the chancery court on motion of appellee Tizzie Smith, who was the original defendant below.
Two orders made below (in addition to order transferring the cause to equity) are shown in the transcript.
One of these is an order eliminating from the complaint W. E. Beloate as executor. This order was not a final one, because W. E. Beloate, individually, was the real party in interest and his rights were in no manner affected by the executor being removed from the litigation.
The other order was one sustaining the motion of appellee to strike an amendment to the complaint. This amendment in reality was a statement of legal conclusions which appellant sought to have drawn from the evidence, and, if these conclusions were justified, the chancery court on final hearing might, in the absence of such amendment, have treated the complaint as having been amended to conform to the proof. After this amendment was stricken appellant's original complaint still renamed for disposal. Therefore, this order was not final or appealable.
Since the lower court has made no final order in this case, it is not properly here. Reynolds v. Craycraft, 26 Ark. 468; Lee v. Black, 27 Ark. 336; Davis v. Hale, 114 Ark. 426, 170 S.W. 99, Ann. Cas. 1916D, 701; Durben v. Montgomery, 144 Ark. 153, 221 S.W. 855, 223 S.W. 17; Harvey v. Marr, 173 Ark. 90, 291 S.W. 981.
The motion of appellees to dismiss the appeal will, therefore, be sustained.