dissenting. I am compelled to dissent from the holding of the majority in this action.
The record clearly shows that the trial court exceeded its authority in ordering the attorneys for Farm Service Cooperative of Fayetteville, James F. Dickson and Wayne B. Ball,
. to appear ... for purpose of being deposed on the question of malice and the basis of malicious prosecution allegation and the basis of attorney fees charged upon which recovery is sought.” (Emphasis Added)
It is apparent from the face of the order that the attorneys for Farm Service Cooperative of Fayetteville run the risk of contempt of the trial court’s order should they refuse to answer any questions posed by attorneys for Goshen Farms regarding the malicious prosecution allegation contained in the counterclaim of their client without being afforded the opportunity to object to the grounds of relevancy, materiality and attorney-client privilege and have such objections considered by the trial court before being ordered to respond to questions posed.
It seems clear that the sole purpose of deposing the attorneys for Farm Service Cooperative is to harass and intimidate counsel. This conclusion is inescapable when one considers the fact that Goshen Farms has brought several actions against Farm Service Cooperative which have had a rather tragic demise either by way of jury verdicts in behalf of Farm Service Cooperative or by nonsuit. Moreover, it seems further obvious that if Goshen Farms desired to take discovery deposition on the malicious prosecution allegation, the party litigant is the proper person to be deposed and not its lawyers.
The majority has recognized in its opinion that it is clear from the face of the trial court’s order that the trial court exceeded its authority, but concludes that a writ of prohibition does not issue for this purpose since the writ may not be used as a substitute for an appeal. It is, perhaps, true that writ of prohibition is not the appropriate means to deal with the problem faced by the Court, but this Court may treat petitioners’ petition for writ of prohibition as a petition for certiorari and strike that part of the order directing the attorneys for Farm Service Cooperative to answer questions pertaining to malice and the basis of malicious prosecution allegation.
In State of Arkansas, Ex Rel Joe Purcell, Attorney General, Arkansas State Highway Commission v. G.D. Nelson, Berry Petroleum Company, et al, 246 Ark. 210, 438 S.W. 2d 33, we said, among other things:
“certiorari lies to correct proceedings erroneous upon the face of the record when there is no other adequate remedy ... it is available in the exercise of superintending control over a tribunal which is proceeding illegally where no other mode of review has been provided . . . certiorari lies where there is a want of jurisdiction or an act in excess of jurisdiction which is apparent on the face of the record ...” (Emphasis added)
An additional reason asserted by the majority in denying relief is the contention that the order of the trial court is interlocutory in nature and consequently, an appeal does not lie.
I submit, however, that due to the nature and scope of the trial court’s order in directing the attorneys to answer questions pertaining to their client’s allegations and the possible serious consequences that could flow upon counsel’s refusal to answer on the grounds of attorney-client relationship, materiality or relevancy, this Court should not look to form, but, indeed, the substance of the order and regard it as final. See: 4 Am. Jur. 2d, Appeal and Error, Section 51, p. 573, where it is provided:
“A number of tests of finality for purpose of appealability have been suggested, but none of these has universal applicability. Where there is a doubt in this respect, the surrounding circumstances as disclosed by the record may be considered. Ordinarily it will appear from the face of the decision whether it is or is not final. However, the test of finality is the substance of the decision rather than its form or name, so that a decision may be final and appealable although it is denominated interlocutory.”
It must be remembered that that portion of the trial court’s order directing counsel to answer questions relating to their client’s counterclaim was gratuitous in every respect. Respondents made no demand for affirmative relief. Petitioners simply filed a motion to quash notice of the time and place for deposing counsel. It seems that an appropriate order would have simply denied the motion to quash. Thus, the parties could have simply followed the statutory provisions for discovery. But as it now stands, counsel do not know precisely what destiny has in store for them.