Richards v. Maher , 219 Ark. 112 ( 1951 )

George Rose Smith, J.

This is an application for a writ of prohibition to prevent the circuit court of Saline County from proceeding to hear a condemnation suit filed by the city of Benton. The city brought the suit to condemn a small strip of petitioners’ land for use as a city street. The suit was at first transferred to equity, but on motion by the city the cause was retransferred to law. Petitioners filed a second motion to transfer to equity, which was overruled. The circuit court set the ease for trial, and the present petition was then filed.

In asking for a writ of prohibition the petitioners rely almost entirely upon our decision in Burton v. Ward, Chancellor, 218 Ark. 253, 236 S. W. 2d 65. There, as here, the motion to transfer to equity set forth various grounds for chancery jurisdiction, such as that the proposed taking was arbitrary, capricious, excessive, etc. In the earlier case we issued a writ of mandamus requiring the chancery court to hear the case.

We think the cases plainly distinguishable. In the Burton case the circuit court had transferred the suit to equity, tlie chancellor had transferred it back to law, and the circuit court then declined to proceed. Thus an impasse was reached, each trial court insisting that the other had jurisdiction. The litigants were unable to obtain a trial in any court, and by mandamus we ordered the chancellor to assume jurisdiction.

Here the trial courts are in agreement. The chancellor has sent the case back to the circuit court, and that court proposes to proceed with the trial. Unlike the situation in the Burton case these petitioners are afforded the opportunity of a trial, but they insist that the hearing should be in chancery. It is settled, however, that the remedy for a refusal to transfer an action to equity is by appeal, not by prohibition. Dunbar v. Bourland, 88 Ark. 153, 114 S. W. 467. As we said in Bassett v. Bourland, 175 Ark. 271, 299 S. W. 13: “The writ is never issued to prohibit an inferior court from erroneously exercising its jurisdiction, but only where the inferior tribunal is wholly without jurisdiction, or is proposing or threatening to act in excess of its jurisdiction. To illustrate: The circuit judge certainly had jurisdiction to pass upon the motion to transfer to equity the case pending in its court. If it erroneously transferred the case to equity, prohibition is not the remedy. It can be corrected only on appeal.” We then went on to point out that the party objecting to the transfer should have saved his objection and preserved his point for consideration by this court on appeal from the trial court’s final judgment.

The writ is denied.