Opinion
No. 5-2594
Opinion delivered October 9, 1961.
APPEAL AND ERROR — FINAL ORDERS, ORDER QUASHING SERVICE OF SUMMONS AS. — Where the plaintiff appealed from an order quashing the service of summons on the defendants without announcing to the trial court that he elected to stand on the service he had obtained, there was no final order from which an appeal would lie.
Appeal from Yell Circuit Court, Danville District; Audrey Strait, Judge; motion to dismiss appeal granted.
Parker Mobley, for appellant.
Scott Davidson and Crouch, Jones, Blair Cypert, for appellee.
Appellees have filed a motion to dismiss the appeal in this case, alleging that there has been no final order from which an appeal will lie. This action was filed by appellant, Delano Robberson. Appellees filed motions to quash service. The motions were granted and Robberson has appealed to this Court from the order of the circuit court quashing service of summons. The trial court made no order except that of quashing the service of summons on the various defendants. The plaintiff then appealed to this Court without announcing to the trial court that he elected to stand on the service he had obtained.
The case is still pending in the circuit court and would still be pending if appellant failed to prevail here on this appeal. The correct procedure was pointed out in Harlow v. Mason, 117 Ark. 360, 174 S.W. 1163. There the Court said: "So, here, appellant had the right to stand upon the proposition that his service was sufficient, in which event a final judgment would have been pronounced; and we think the better practice is to require him either to stand upon the sufficiency of his service and permit a final order to be entered, or to have the return amended to conform to the rulings of the court." See also Yocum v. Oklahoma Tire Supply Co., 191 Ark. 1126, 89 S.W.2d 919.
The motion to dismiss the appeal is granted.