Summary
holding that an order granting or denying a change of venue is not an appealable order
Summary of this case from Plunk v. StateOpinion
No. 5-5850
Opinion delivered April 3, 1972
1. APPEAL ERROR — ORDER TRANSFERRING RECORD — REVIEW. — An order transferring the record of proceedings before the Arkansas Savings and Loan Association Board from Pulaski Circuit Court to Clay Circuit Court, where proceedings were first instituted, is not an appealable order.
2. APPEAL ERROR — ORDER TRANSFERRING CAUSE — NECESSITY OF FINAL DETERMINATION. — An order transferring a cause from circuit court to chancery court, even though it may affect a substantial right, is not appealable because it does not determine or discontinue the action or prevent an appealable judgment, but only transfers the Cause to another forum where it continues until disposed of.
3. APPEAL ERROR — INTERLOCUTORY ORDERS — NECESSITY OF FINAL DETERMINATION. — An appeal will not be from an interlocutory order relating only to some question of law or matter of practice in the course of the proceeding leaving something remaining to be done by some court having jurisdiction to entertain the same and proceed further therewith.
4. ADMINISTRATIVE LAW PROCEDURE — JUDICIAL REVIEW — STATUTORY PROVISIONS. — Provisions of Ark. Stat. Ann. 5-713 did not repeal the Section in the Savings Loan Association Act permitting appeal to Pulaski Circuit Court but provided additional tribunals which might hear such an appeal whereby the circuit court of Clay County had jurisdiction of an appeal from the Board's denial of an application for savings and loan association charter.
5. ADMINISTRATIVE LAW PROCEDURE — JUDICIAL REVIEW — STATUTORY PROVISIONS. — Provision in Ark. Stat. Ann. 5-713(e) for filing the record in the court where proceedings for review were first commenced, and for transfer of proceedings filed in other courts to that court, did not provide that a notice might be filed in another county for an appeal to the Pulaski Circuit Court.
6. ADMINISTRATIVE LAW PROCEDURE — SAVINGS LOAN ASSOCIATION BOARD — LEGISLATIVE FUNCTION. — ARGUMENTS as to the inconvenience to the Savings Loan Association Board and detriment to its orderly and efficient Oration are matters to be addressed to the legislature rather than the courts.
7. APPEAL ERROR — APPELLATE JURISDICTION — NATURE GROUNDS. — The question whether an order is final and subject to appeal is a jurisdictional question which the Supreme Court may raise on its own motion.
8. APPEAL ERROR — JURISDICTION — NECESSITY OF FINAL DETERMINATION. — Where an order appealed from is not final, the Supreme Court does not have jurisdiction and it cannot be conferred by consent.
9. COURTS — JURISDICTION, DETERMINATION OF — POWER DUTY OF — COURT. — Whether the question is raised by the parties or not, a court has not only the power but the duty to determine whether it has jurisdiction of the subject matter.
Appeal from Pulaski Circuit Court, Third Division; Tom F. Digby, Judge; appeal dismissed
Kenneth E. Suggs, for appellant.
Smith, Williams, Friday, Eldredge Clark, by William L. Terry, for appellee.
Appellee filed two notices of appeal from appellant's denial of its application for a state savings and loan association charter. The first notice was filed in the Circuit Court of Clay County on August 19, 1971. The second was filed in the Circuit Court of Pulaski County on August 23, 1971. Appellant filed the transcript of the proceedings before it on September 17, 1971. On September 23, appellee filed a motion to transfer the record to the Clay Circuit Court. Appellant responded on October 13. Appellee's motion was granted on October 23. The Pulaski Circuit Court held that the Arkansas Administrative Procedure Act [Ark. Stat. Ann. 5-701 — 724 (Supp. 1971)] supplemented but did not repeal the Arkansas Savings and Loan Act provision for appeal [Ark. Stat. Ann. 67-1811 (Repl. 1966)] from an order of the Arkansas Savings and Loan Board, so that, under 13 (Ark. Stat. Ann 5-713) of the former act, the record must be transferred to the Clay Circuit Court.
Ark. Stat. Ann. 5-704 has been repealed by Acts 1969, No. 495, 2.
Appellant's appeal from that order is based upon its argument that Ark. Stat. Ann. 5-713 did not confer jurisdiction upon any circuit court outside Pulaski County because "full jurisdiction" of such appeal is conferred upon the circuit court of the latter county by 67-1811, and that 5-713 is controlling for venue purposes only, so that a notice of appeal could properly be filed in the Circuit Court of Clay County but that exclusive jurisdiction of the appeal remained in the Circuit Court of Pulaski County.
The order of transfer is not an appealable order. It is somewhat analagous to an order for a change of venue which we have held was not appealable. State v. Langstaff, 231 Ark. 736, 332 S.W.2d 614. It is also in many respects similar to an order transferring a cause from the circuit court to the chancery court which we have also held was not appealable, even though it affects a substantial right, because it does not determine or discontinue the action or prevent an appealable judgment, but only transfers the cause to another forum where it continues until disposed of. Womack v. Connors 74 Ark. 352, 85 S.W. 783; Johnson v. Plant, 207 Ark. 871, 181 S.W.2d 240; Vaughan v. Hill, 154 Ark. 528, 242 S.W. 826.
We have also said that an appeal will not lie from an interlocutory order relating only to some question of law or matter of practice in the course of the proceeding leaving something remaining to be done by some court having jurisdiction to entertain the same and proceed further therewith. Johnson v. Johnson, 243 Ark. 656, 421 S.W.2d 605.
Under the provisions of 5-713, the Circuit Court of Clay County does have jurisdiction of this appeal. Filing a petition for review in that court was permissible under 5-713(b)(1) if the parties taking the appeal did in fact reside in that county, even though they might have elected to file it in Pulaski County. The act clearly provides for the transfer made. 5-713(e). This act provides an alternate appellate procedure and jurisdiction.
We cannot construe the words "full jurisdiction" in 67-1811 to mean exclusive jurisdiction which is unimpaired by the later act. Nor can we agree that the words "delegation of authority" in the disclaimer by the General Assembly of any intention to repeal 5-701) refer to jurisdiction placed in a court. In any event 5-713 did not repeal the section permitting appeal to the Pulaski Circuit Court, but simply provided additional tribunals which might hear such an appeal.
We are not impressed by the argument that it was intended that a notice might be filed in another county for an appeal to the Pulaski Circuit Court. We can find no logical or rational reason for the legislature to take such a step. The provision in 5-713(e) for filing the record in the court where proceedings for review were first commenced and for transfer of proceedings filed in other courts to that court clearly negates this idea.
We do not take Ark. Stat. Ann. 34-201 (Repl. 1962) to fix jurisdiction rather than venue or to be unaffected by the Administrative Procedure Act, as appellant argues.
Other arguments advanced by appellant as to the inconvenience to it and detriment to its orderly and efficient operation are matters to be addressed to the legislative branch rather than to the courts.
The question whether the order is final and subject to appeal is a jurisdictional question which we ourselves raise. H. E. McConnell and Son v. Sadle, 248 Ark. 1182, 455 S.W.2d 880; Worth Insurance Co. v. Patching, 241 Ark. 620, 410 S.W.2d 125.
Although appellee has attempted to waive the question of finality of the order, this court does not have jurisdiction and it cannot be conferred by consent. Green v. Thomas, 8 Ark. 56; Hamilton v. Buxton, 5 Ark. 400. See also, 4 C.J.S. 246, Appeal and Error, 92.
Whether the question is raised by the parties or not, it is not only the power but the duty of a court to determine whether it has jurisdiction of the subject matter. 20 Am.Jur.2d 452, Courts, 92; 21 C.J.S. 175, Courts, 114.
The appeal is dismissed.