Cowan v. Patrick ( 1969 )

Conley Byrd, Justice,

dissenting. My dissent -to the majority opinion’s amendment of Ark. Stat. Ann. § 27-1405 (Repl. 1962) is based upon the fact that civil procedure in this State is controlled-by legislative act. Ark. Stat. Ann. § 27-1405 is as follows:

“DISMISSAL OF ACTIONS. — An action may be dismissed without prejudice to a future action:

First. By the plaintiff before the final submission of the case to the jury, or to the court, where the trial is by the court.

Second. By the court where the plaintiff fails to appear on the trial.

Third. By the court for the want of necessary parties.

Fourth. By the court on the application of some of the defendants, where there are others whom the plaintiff fails to prosecute with diligence.

Fifth. By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action.

In all other cases, upon the trial of the action, the decision must be upon the merits. [Civil Code, § 402;...]”

It will be noted that the General Assembly, after setting up five grounds for dismissal of a complaint, provided that: “In all other cases Kupon the trial of the action, the decision must he upon the merits.’’ When we add an additional ground for dismissal it appears to me that we are but “LEGISLATING.”

If I were at liberty to legislate I would go further and provide that when it appears that a cause of action is filed in a particular jurisdiction because ■ of “a race to the court house” and for purposes of fixing venue only then the trial court in its discretion may transfer the cause to the county in which the cause of action could most conveniently be tried.

Because I conscientiously believe that the Supreme Court should only interpret the laws as it finds them and leave to the General Assembly the amendments thereof, I dissent from the action here taken by the majority.