(dissenting.) That the substance should always control the form is axiomatic and readily yielded to, but in this case the invocation of that salutary principle calls for a reversal for a matter not presented to the trial court. There is no such proceeding authorized as an appeal from the action of the clerk in issuing a supersedeas. The remedy is in the court from which the execution issued to quash the execution or levy upon the grounds then presented to it. If the clerk refuses the super-sedeas, the rémedy is by mandamus to compel him to issue it when the applicant shows himself entitled to it. Chambers v. Perry, 47 Ark. 400.
In this case the creditor filed a paper before the clerk, setting forth alleged grounds why the clerk should not issue the supersedeas. But the clerk is not a judicial officer, and if the execution defendant files the proper schedule (as was done here), he has no discretion, and must issue the supersedeas. Upon the clerk's issuance of the supersedeas, the execution plaintiff took an appeal to the chancery court, and proceeded as is required by law for appeals from justices of the peace to the circuit court. The affidavit, bond and petition for appeal contemplated in such appeals were made. In the chancery court the execution defendant moved to dismiss the appeal thus taken. The only issue presented to the chancery court was whether it could entertain an appeal from its clerk in issuing a supersedeas against a levy on the alleged homestead. Had the creditor asked that his appeal be treated as a motion to quash, and presented the merits of his case to the chancery court, then it should have disregarded the form of it, and looked to the substance, and ascertained if the appeal papers contained matters which, if presented in a motion to quash the levy, would be held sufficient. But nothing of that kind was done. The appealing party stood on his appeal from the clerk, and, when the chancery court properly held that an appeal did not lie, instead of presenting a motion to quash, or asking those papers to be treated as such motion, he appealed to this court. This cou'rt now finds that an appeal does not lie, but reverses the case because the chancery court did not treat the papers as something which the party presenting them did not ask — a motion to quash. That question is presented for the first time after this appeal is brought to this court, and the minority of the court are of opinion that the appellant invited a ruling on his right to appeal from the clerk's action, and obtained a correct ruling thereupon, and that he cannot now ask a reversal upon another view of his own papers which he did not present to the chancery court.
One of the alleged grounds for quashing the execution levy is that the. land exceeded in value the maximum allowed as exempt by the Constitution. Section 3909, Kirby’s Digest, provides in such cases that the clerk (or justice) shall, on application, appoint appraisers, who shall report upon such claim, and section 3910 prescribes the duty of said appraisers, and section 3911 ■prescribes the duty of the clerk, accepting the finding of che appraisers, and section 3915 gives either side the right of appeal from the board of appraisers.
That coursé was not pursued here, and a familiar rule of construction is that, when a statute prescribes a remedy, that remedy for a right therein conferred is exclusive. If the extremely liberal construction adopted by the majority should prevail, it should not be carried so far as to include the right to raise the question of valuation which should have been raised as provided by statute.
Mr. Justice Riddick concurs in the dissent.