This is а dispute concerning a settlement offer of an unliquidated claim in the amount оf $5,598. Appellants had bought feed from appellees on credit. When they fell behind on their payments on an open account, they were asked to exеcute a promissory note. They executed the note as requested.
After аppellants fell behind on their payments pursuant to the terms of the note, aрpellee brought suit. Appellants alleged as a defense that the note failed to comply with the disclosure requirements under the Truth-in-Lending Act.
Subsequently, appellee, through its counsel, proposed to settle the disputed claim in the amount of $1,000. Appellants responded through their attorney by sending a letter purporting to accept the settlement offer and stating that he would let appellee know within a few days when he would tender payment. A period of approximately three weeks expired during which telephone conversations were hаd between the attorneys for the opposing parties. Then, counsel for appellee wrote a letter to appellants’ attorney informing him that because of his client’s delay, the settlement offer was no longer availablе. He said that the settlement offer was conditioned upon payment being madе within ten days. Appellants filed a motion to declare a settlement and for аn order of dismissal. The Circuit Judge denied both motions. Appellants appeal from the order.
Appellants argue on appeal that the attorneys had entered into an executory accord which was enforceable against the appellee. However, we find a jurisdictional question in . this appeal which neither party has raised; namely, was the order denying appellants’ motion a final, appealable order. We think not.
Since the order was dated July 31, 1979, the New Rules of Appellate Procedure would govern. Rule 2 of the new Rules of Appellate Procedure states:
a) An appeal may be taken from а circuit, chancery, or probate court to the Arkansas Supreme Court from:
1. A final judgment or decree entered by the trial court;
2. An order which in effect determines the action and prevents a judgment from which аn appeal might be taken, or discontinues the action;
3. An order which grants or refuses a new trial;
4. An order which strikes out аn answer, or any part of an answer, or any pleading in an action;
5. An order which vacates or sustains an attachment or garnishment;
6. An interlocutory order by which an injunction is granted, continued, modified, refused, or dissolved, or by which an application to dissolve or modify an injunction is refused;
7. An interlocutory order appointing а receiver, or refusing to wind up a pending receivership or to take the аppropriate steps to accomplish the purpose thereof, such as directing a sale or other disposal of property held thereunder.
(b) An appeal from any final order also brings up for review any intermediate оrder involving the merits and necessarily affecting the judgment [.]
(c) Appeals under subseсtions (6) and (7) take precedence in the Supreme Court.
The Arkansas Supreme Court has stated that even when the parties have not raised the issue, the questiоn of a final order is a jurisdictional question which the appellate court сan raise itself. Arkansas Savings & Loan Association v. Cornell Savings & Loan Association,
In the instant case, the order issued by the circuit judge which denied apрellants’ motion to dismiss and to declare a settlement does not come within аny of the requirements stated in Rule 2. The overruling of a motion to dismiss an action has been held not to be “final judgment” from which an appeal would lie. Wicker v. Wicker,
In оrder for a judgment to be final, it must dismiss the parties from the court, discharge them from the аction, or conclude their rights to the subject matter in controversy. McConnell v. Sadle, supra; Piercy v. Baldwin,
The appeal is dismissed and the case is remanded to the Circuit Court.