State v. Greenville Stone & Gravel Co. , 122 Ark. 151 ( 1916 )

Wood, J.

(alfter stating the facts.) The orders overruling the demurrers of the companies to the complaint of the State are not final orders from which an appeal will lie.

Section 1188 of Kirby’s Digest provides: “The Supreme Court shall have appellate jurisdiction over the final orders, judgments and determinations of all inferior courts of the State, in the following eases and no others:

“First. In a judgment in an action commenced in the inferior .courts, and, upon the appeal from such judgment, to review any intermediate order involving the merits and necessarily affecting the judgment.

“Second. In an order affecting a substantial right made in such .action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action; and when such order grants or refuses a new trial, or when such order strikes out an answer, or any part of .an answer, or any pleading in an action; * * *

“Third. In a final order affecting a, substantial right made in a special proceeding, or upon a summary application in an action ¡after judgment, and upon such appeal to review any intermediate order involving the merits aufi necessarily affecting the order appealed from.

“Fourth. Whenever the decision of any motion involves the constitutionality of any law of this State, or where the decision of any such motion has been or shall be placed, in the opinion of the judge making such decision, upon the nneonstitntionality of such law, then an appeal shall lie, and may he made from such decision or from the order entered upon isuich decision.”

(1) This court, in numerous oases, has held that it is only from a final order or judgment of the 'lower court that an appeal can be taken .to this court. See eases collated in 1 Crawford’s Digest, “Appeal and Error,” 1 d. p. 54. See also cases cited under section supra Kirby’s Digest.

In Davie v. Davie, 52 Ark. 224, Chief Justice Cockrill, .speaking for the court, said: “The right of appeal is limited in general to final judgments, and does not extend to interlocutory orders; The object of the limitation is to present the whole cause here for determination in a single appeal and thus prevent the unnecessary expense and delay of repeated appeals. ’ ’ And the court held in that case, concerning the first sub-division of the above section, that it “does not undertake to grant the right-of appeal from an interlocutory order, but provides only what the law was without it, that such an order can be reviewed on appeal from the final judgment.’’

What was said by Judge CookriU for the court in that case concerning the first sub-division is equally true -also of the fourth su'b-division, which the trial court, in the instant case, invoked .and embodied in its orders overruling the companies’ demurrers and granting an appeal.

(2-3) We have reached the conclusion that, under the fourth sub-division, no appeal will lie from a decision of the lower court on any motion, even though it involves the constitutionality of any law of this State, unless the decision is a final order or judgment of the court. The mere fact that the constitutionality of a law may be involved in the decision on a motion would not of itself render the decision on such motion a. final order or judgment. Under the statute giving it appellate jurisdiction over final orders and judgments, and no others, this court would not .acquire jurisdiction on the decision of a motion involving the constitutionality of alaw unless such decision constituted a final order or judgment in the case. To hold otherwise would lead to interminable confusion in our decisions .and to innumerable appeals from interlocutory orders not decisive of the final rights of the parties, and would thus thwart the very purpose of the law, which, as stated in Davie v. Davie, supra, was “to prevent unnecessary expense 'and delay of repeated appeals. ’ ’ It can readily be seen that a decision involving the constitutionality of a. law, especially where the court holds that the law is constitutional, would not determine the final merits of the lawsuit at all. On the contrary, the decision on .such a motion upon a cause of action, grounded upon the statute, holding that the statute was valid, would, in .fact, be but the beginning of the lawsuit.

II. While the court entered an order sustaining appellant’s demurrer No. 2, to .that portion of the 'Complaint which seeks to recover for sand and gravel taken before the passage of the act of March 29th, 1913, there is no ■ final order or judgment ¡of the court dismissing this portion of the complaint. We therefore, on appeal from this, have no jurisdiction to pass upon the issue as to whether or not the State is entitled to recover on the allegations of this portion of the complaint, the appeal being premature.

(4) An order sustaining a demurrer to a complaint is in effect a holding that the complaint is of no avail and, it seems, is as near a final order as could be conceived, that is not so in fact; yet we have often, and in some very recent cases held that, “where the 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 be appealed from.” Adams v. Primmer, 102 Ark. 380; Atkins v. Graham, 99 Ark. 496; Moody v. Jonesboro, L. C. & E. Ry. Co., 83 Ark. 371.

The appeals are premature, and are therefore dismissed.

Justices Hart and Kirby concur in the judgment only, and think the statute — 4th div. of section — makes a judgment declaring a statute unconstitutional a final and appealable order.