Opinion
DISSENTING OPINION
JENNINGS, Judge.
I cannot agree that the answer to the question whether the trial court had "subject matter jurisdiction" is clear. I do agree that these cases, cited by the majority, support the argument that the probate court lacked subject matter jurisdiction: Hilburn v. First State Bank of Springdale, 259 Ark. 569, 535 S.W.2d 810 (1976); Risor v. Brown, 244 Ark. 663, 426 S.W.2d 810 (1968); Ellsworth v. Cornes, 204 Ark. 756, 165 S.W.2d 57 (1942); Shane v. Dickson, 111 Ark. 353, 163 S.W. 1140 (1914). The majority's position on this issue is also supported by Huff v. Hot Springs Savings, Trusts&s Guaranty Co., 185 Ark. 20, 45 S.W.2d 508 (1932). The following cases, however, at least arguably would support a holding to the contrary: Deal v. Huddleston, 288 Ark. 96, 702 S.W.2d 404 (1986); Keenan v. Peevy, 267 Ark. 218, 590 S.W.2d 259 (1979); Snow v. Martensen, 255 Ark. 1049, 505 S.W.2d 20 (1974); Hobbs v. Collins, 234 Ark. 779, 354 S.W.2d 551 (1962); Park v. McClemens, 231 Ark. 983, 334 S.W.2d 709 (1960); Carlson v. Carlson, 224 Ark. 284, 273 S.W.2d 542 (1954); Thomas v. Thomas, 150 Ark. 43, 233 S.W. 808 (1921). Confusion in this area has periodically been acknowledged. See, e.g., Hartman v. Hartman, 228 Ark. 692, 309 S.W.2d 737 (1958); Hilburn, supra; Deal, supra.
Historically, the supreme court has taken a restrictive approach in determining the jurisdiction of probate court. This has not been entirely a function of constitutional limitations. See, e.g., Moss v. Moose, 184 Ark. 798, 44 S.W.2d 825 (1931). Some of the reasons for taking a restrictive approach no longer exist. As late as 1931, the supreme court said of probate judges: "Some possibly are dishonest, many are not wise or discriminating." Moss v. Moose, 184 Ark. at 802, 44 S.W.2d 825. Today all probate judges are chancellors; an increasing number are also circuit judges.
Traditionally, if a court acts outside of the constitutional or statutory provisions defining its subject matter jurisdiction, any resulting judgment would be coram non judice and void. See R. Casad, Jurisdiction in Civil Actions § 1.01 (1983); Huff v. Hot Springs Savings, Trusts&sGuaranty Co., 185 Ark. 20, 45 S.W.2d 508 (1932). See also Eddleman v. Estate of Farmer, 294 Ark. 8, 740 S.W.2d 141 (1987); Filk v. Beatty, 298 Ark. 40, 764 247 S.W.2d 454 (1989). Professor Casad, however,
Actually, the effect of a court exceeding the limits of its subject matter jurisdiction is not as cut-and-dried a matter as traditional doctrine would suggest. The issue of subject matter jurisdiction can, in fact, be foreclosed in some situations.
Casad, supra; see also Dobbs, The Validation of Void Judgments: The Bootstrap Principle, 53 Va.L.Rev. 1003 (1967). There is certainly authority in Arkansas for foreclosing the issue of subject matter jurisdiction under certain circumstances. Fancher v. Kenner, 110 Ark. 117, 161 S.W. 166 (1913), suggests that jurisdiction of the probate court may be "acquiesced in." In Mason v. Urban Renewal, 245 Ark. 837, 434 S.W.2d 614 (1968), the supreme court held that one could be estopped to assert a lack of subject matter jurisdiction. Taylor v. Terry, 279 Ark. 97, 649 S.W.2d 392 (1983), suggests that the issue must be raised on appeal.
In an article entitled Subject Matter Jurisdiction as a New Issue on Appeal: Reining in an Unruly Horse, 1988 B.Y.U.L.Rev. 1, Professor Robert Martineau notes that the American Law Institute, both in its Restatement Second of Judgments and in its proposal on diversity jurisdiction, suggests that there is no reason why the issue of subject matter jurisdiction cannot be foreclosed in the trial court under the same rules that apply to preserving other types of error. "Namely, counsel must raise it in the trial court, have the objection noted in the record, and then present the issue in the principal brief on appeal." Martineau at p. 33. He says:
Foreclosing the issue of subject matter jurisdiction is justified because both the other party and the judicial system have been put to substantial expense in time and money to decide the case on the merits. This expense may all have been avoided if the party objecting to subject matter jurisdiction had done so as a preliminary matter prior to trial.
Id. at p. 34.
Martineau also notes that "making a requirement that a particular person or type of person be made a party an element of subject matter jurisdiction cannot be justified by even an expansive interpretation of the concept. Even when the confusion over necessary and indispensable parties was at its height, there was no suggestion that a court's subject matter jurisdiction was involved." Id. at p. 26. This observation is particularly applicable to the issue of subject matter jurisdiction in the case at bar because the applicable case law seems to turn, at least in part, on the "type of person" who is a party to the action.
In my view the Arkansas Supreme Court has shown an inclination to follow the trend of foreclosing the issue of subject matter jurisdiction when the issue has not been raised. In Hooper v. Ragar, 289 Ark. 152, 711 S.W.2d 148 (1986), the primary argument on appeal was that the circuit court lacked jurisdiction to entertain a suit for an accounting and settlement of partnership affairs. The court said:
Hence, it is said, the circuit court had no jurisdiction of the subject matter, so that the entire proceeding in that court was a nullity. There was no objection in the lower court to its jurisdiction, but the argument is that a lack of subject matter jurisdiction may be raised at any time.
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As we explained [in Liles v. Liles ], subject matter jurisdiction in one sense means power and may be exclusively vested in a particular court. For example, the circuit court has exclusive jurisdiction of election contests, the chancery court of divorce cases, and the probate court of the probating of wills. No other court has the power to entertain and decide such cases.
The present litigation, however, does not come within that category.... Here the lawyers and the trial judge tacitly recognized the jurisdiction of the circuit court and went ahead with the trial. The appellants have had their day in court and are not entitled to a second chance.
In Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986), decided the same day as Hooper, the contention was that the chancery court lacked subject matter jurisdiction to decide a tort claim (fraud). There the court said:
We are not considering whether the plaintiff had a right to have the claim in chancery rather than the circuit court; rather the issue is whether the chancellor had the power to determine the matter.
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We noted [in Crittenden County v. Williford, 283 Ark. 289, 675 S.W.2d 631 (1984) ] it is only when the court of equity is "wholly incompetent" to consider the matter before it will we permit the issue of competency to be raised for the first time on appeal.
Viewed together, these cases demonstrate that we have come to the position that unless the chancery court has no tenable nexus whatever to the claim in question we will consider the matter of whether the claim should have been heard there to be one of propriety rather than one of subject matter jurisdiction. We will not raise the issue ourselves, and we will not permit a party to raise it here unless it was raised in the trial court. [Emphasis in original. Citations omitted.]
See also Horne Brothers, Inc. v. Ray Lewis Corp., 292 Ark. 477, 731 S.W.2d 190 (1987) (the test is whether the court has no tenable nexus whatever to the claim in question) and McCoy v. Munson, 294 Ark. 488, 744 S.W.2d 708 (1988). Although neither Hooper nor Liles involved the issue of the jurisdiction of probate court they seem applicable by analogy.
Because I do not think that the probate court had no tenable nexus whatever to the claim below, I would treat the matter as "one of propriety." Particularly in view of the uncertainty as to whether the probate court did in fact have subject matter jurisdiction, I would not raise the issue sua sponte. While I agree with the majority that we have the power to raise the issue of the trial court's subject matter jurisdiction sua sponte, I do not agree that we have a duty to do so. The cases which refer to the duty of the court to raise the issue of subject matter jurisdiction are cases dealing with the court's own jurisdiction. For instance, the lack of an appealable order goes to the appellate court's own jurisdiction and is a matter which the appellate court raises sua sponte. See, e.g., Cigna Ins. Co. v. Brisson, 294 Ark. 504, 744 S.W.2d 716 (1988); State v. Hurst, 296 Ark. 132, 752 S.W.2d 749 (1988). Likewise, the trial court has a duty to determine whether a case presented to it is within its subject matter jurisdiction. See generally 20 Am.Jur.2d Courts § 92 (1965); 21 C.J.S. Courts § 114 (1940). There is, however, no duty on the part of the appellate court to raise, on its own motion, the issue of the subject matter jurisdiction of the trial court.
See Coran v. Keller, 295 Ark. 308, 748 S.W.2d 349 (1988).
There are practical reasons for not raising issues on our own motion. We do not have the benefit of briefs on the issue. We are left to our own research. We lose the benefits of the adversary system. For precisely these reasons we are less likely to arrive at the correct answer when we raise an issue sua sponte.
Two recent examples are Gorchik v. Gorchik, 10 Ark.App. 331, 663 S.W.2d 941 (1984), overruled in Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986) and Travelers Indemnity Co. v. Olive's Sporting Goods, Inc., 25 Ark.App. 81, 753 S.W.2d 284 (1988), reversed on petition for review Travelers Indemnity Co. v. Olive's Sporting Goods, Inc., 297 Ark. 516, 764 S.W.2d 596 (1989).
Here, it is not at all clear that the probate court was wholly without subject matter jurisdiction, and it is neither necessary nor the best course of action to raise that issue on our own. Appellant has had its day in court in the forum it selected and is not entitled to a second chance. I would decide the case on the merits.