Parker v. Frierson , 124 Ark. 238 ( 1916 )

Kirby, J.,

(after stating the facts). It is insisted that the suit was properly dismissed in vacation and that the chancery court was without jurisdiction thereafter to proceed further in the hearing thereof. Appellants in support of their position rely upon Lyons v. Green, 68 Ark. 205, and sections 7779 and 6168 of Kirby’s Digest, which provide:

“Sec. 7779. All actions in favor of and in which the State is interested shall be brought in 'the name of the State in the circuit court of the county in which the defendant may reside or be found, and shall be prosecuted by the prosecuting attorney for the State, prosecuting in such circuit.”

“Sec. 6168. The plaintiff may dismiss any action in vacation, in the office of the clerk, on the payment of all costs that may have accrued therein, except an action to recover the possession of specific personal property, when the property has been delivered to the plaintiff.”

There is no question but that a plaintiff may dismiss his action in vacation in accordance with said section 6168, nor that all actions in favor of and in which the State is interested are required to be brought in its name by the prosecuting attorney .of the circuit court of the county designated, and conceding without deciding that such official would have the right to dismiss such a suit for the State, brought by him, in vacation, it does not follow that said consent order now claimed to be only a dismissal of the suit was entitled to entry upon the record as a matter of course upon its presentation to the clerk.

In Lyons v. Green, it was held proper, under the authority of said section 6168, for the clerk as custodian of the record to enter up the order of dismissal at the request of the plaintiff’s attorney and that if by misprision of the clerk the actual order desired by the plaintiff as to the dismissal was not entered, it could and should be corrected in the court by proper notice and proceedings before the final decree was taken.

(1) It is claimed that the consent decree of dismissal was not such a dismissal of the action in vacation as is authorized by law, that it contained an admission of record by the State of Arkansas that the plaintiffs were the owners of the lands claimed in the action and had the right to build the fence within the original meander line of the lake as they were attempting to do, ‘a recital which was certainly not necessary if the purpose was only to dismiss the suit and which may have been and doubtless was, beyond the power of the prosecuting attorney to make for the State if the rights of individuals or the .public were thereby concluded. It was in form a consent decree, including matters of importance in addition to the direction for dismissal of the action, and there was no authority under the law permitting its entry of record in vacation.

(2-3) The court upon presentation of the matter at the next term upon motion of petitioners requesting the order of dismissal entered of record, refused to grant the relief and ordered the said decree as erroneously entered by the clerk in vacation, expunged from the record. It was acting within its authority and jurisdiction in making such order and if error was' committed therein or in permitting other parties to intervene in the suit and ordering that it proceed to a hearing, it must be taken advantage of :and corrected by appeal, and prohibition will not lie to prevent such further procedure. The petition is accordingly denied.