dissenting. The result reached by the majority in this case is unfair and in my view, contrary to law. The State Highway Commission initiated this litigation by filing its petition in Madison County Court on August 25, 1986, to make certain changes in State Highways 295 and 295 S. The county court notified any landowners affected by the Commission’s action and order of condemnation to present their claims. Appellees petitioned for damages and by order dated September 9, 1989, the county court denied them any relief. Appellees appealed to the Madison County Circuit Court and the Commission moved to dismiss the appeal, claiming it was not a party in interest and the circuit court lacked jurisdiction to award damages against the Commission. The circuit court denied the Commission’s motion, set the matter for jury trial and the jury subsequently awarded appellees damages in the sum of $3,500.
In this appeal, the Commission claims it is not a proper party and cannot be named a party defendant. In making its argument, the Commission cites Ark. Code Ann. §§ 14-298-120 and 27-67-212 (1987), arguing Madison County was the proper party in this matter. In particular, the Commission cites § 27-67-212, which provides the Commission, upon certain conditions, may call upon the county court to change or widen any state highway in the county. In Lee County, Ark. v. Holden, 82 F. Supp. 353 (E.D. Ark. 1949), the federal district court considered this same language and concluded that when the Commission files such a condemnation lawsuit, its petition does not amount to a mere request to the county to commence an action in the county’s own right. The district court concluded that the Commission was the real party in interest.1
In Ark. State Highway Comm’n v. Roberts, 248 Ark. 1005, 455 S.W.2d 125 (1970), we emphasized the rule that when the state becomes a suitor in its courts, it is subject to like restrictions as a private suitor, must be treated as other litigants and must submit to and abide by, the result. Unfortunately, the majority court is treating the Commission with deference not deserved in this matter. The entire matter would have never arisen if the Commission had not initiated these condemnation proceedings and the awards and benefits that ensue from these proceedings are for the Commission. The Commission knew what it was doing when proceeding in this matter, but if for some reason it erred when bringing this case in its name, this court should not penalize the appellees for the Commission’s error. The law certainly does not require this court to reach such an inequitable result.
Holt, C.J., and Purtle, J., join this dissent.The court pointed out the criterion in determining the question of real party in interest and most of those are evident in the present case. See Lee County, Ark., 82 F. Supp. at 356.