McIlroy Bank & Trust v. Zuber

629 S.W.2d 304 (1982)

McILROY BANK & TRUST, Appellant, v. James ZUBER and Patricia L. Zuber, et al., Appellees.

No. 81-254.

Supreme Court of Arkansas.

March 22, 1982.

Pettus, Johnson & Gibson by William Russell Gibson, Fayetteville, for appellant.

No brief filed for appellees.

HAYS, Justice.

Appellant filed suit against appellees in the Chancery Court of Washington County on two promissory notes, secured by articles of personal property, seeking foreclosure, sale and deficiency judgment. Appellees moved to dismiss the complaint under Rule 12(h)(3), A.R.Civ.P., on the ground the court lacked jurisdiction. Appellant responded that it could sue in equity to foreclose its security interest. The chancellor found he lacked subject matter jurisdiction and transferred the suit to circuit court. Appellant appeals.

We do not reach the merits of this appeal as the order appealed from is not final and therefore, not appealable. See Rule 2(a)2, Ark.Rules of Appellate Procedure. It is well established that before a judgment is final and appealable it must dismiss the parties from the court, discharge them from their action or conclude their rights to the subject matter in controversy. An order transferring a suit from law to equity, or the reverse, is not appealable. Hyatt v. City of Bentonville, Ark., 628 S.W.2d 326 (1982), Heber Springs Lawn and Garden, Inc. v. FMC Corp., Ark., 628 S.W.2d 563 (1982).

Appeal dismissed.