101 Ark. 106 | Ark. | 1911
(after stating the facts). It is contended that the circuit court erred in refusing to try the case de novo, which had been first appealed from the county court to it, after same had been reversed by the Supreme Court and remanded for a new trial, and this contention is correct.
The appeal, in the first instance, from the county court brought the entire matter to the circuit court for a trial de novo. “ It is the duty of the circuit court, when a case is appealed from the county court, to hear the matter de novo and to try the case and to exercise the same discretion therein in the same manner in which the county court might have done originally. When a case is appealed from the county court to the circuit court, the latter court obtains jurisdiction over the matter To the same extent as if it had been originally brought in that court, and it must proceed to fully try and determine the cause. It does not pass upon the question as to whether or not the county court has committed error in any of its rulings, either of law or fact, but it must try the case upon its merits, both of law or of fact, just as if it had been originally brought in the circuit court. It does not either affirm orreverse the findings of the judgment of the county court, but tries the cause alone upon its merits, and determines the same by the exercise of its own discretion and judgment. It must come to a final determination of the matter, and enter a final judgment thereon. After such final judgment has been made by it, it can then order the same back to the county court, with directions to enter such judgment as it has made, but it has no authority to remand the cause with power of the county court to proceed further therein, as it may determine. * * * Having this jurisdiction of the cause and being clothed with this power and discretion, the circuit court erred in not trying the matter anew and in remanding the same to the county court. ” Batesville v. Ball, 100 Ark. 496.
In that case the court also decided that the action oí tne circuit court in remanding the cause to the county court for further proceedings and refusing to entertain jurisdiction of the matter and finally pass upon the same in the trial anew was in effect a final dismissal of appeal and determination of the cause from which an appeal would lie.
It thus appears that the error of the circuit court in remanding said cause to the county court with directions to proceed further therein, instead of trying same anew, as the law requires, could have been corrected by an appeal to this court, and “prohibition is only granted when the usual and ordinary forms of remedy are insufficient.” Finley v. Moose, 74 Ark. 220. See also 32 Cyc. p. 613-15 and notes.
Said county court would doubtless not have undertaken to proceed in the matter, had an appeal been taken from the judgment of the circuit court remanding it; and, if it had, proceedings therein could have been stayed by an appropriate order of this court upon the appeal being lodged here. No error was committed by the court in denying the writ of prohibition, and the judgment is affirmed.
