dissenting. Article 7, § 28, of the Arkansas Constitution provides that county courts “shall have exclusive original jurisdiction in all matters relating to county . . . roads [.] ” The majority opinion would permit a joinder or substitution of a new party on appeal in this case, a position that runs directly counter to the State Constitution and to caselaw. I would grant the writ of prohibition.
Cooper Communities, Inc., filed a petition for a private road in Benton County Court, and the road was established by the county court. Several landowners appealed to circuit court. At the appellate level, the Benton County Circuit Court permitted a new party, the Seth Family Trust, to be joined with Cooper Communities in the appeal because of a transferred interest and, in effect, to assume the role of appellee. The majority opinion concludes that this is appropriate because our civil rule, Ark. R. Civ. P. 25(c), permits substitution or joinder of parties due to a transferred interest. Yet, Rule 25(c) clearly does not apply at the appellate level, as the Court of Appeals has already held. See Constitution State Ins. Co. v. Passmore, 18 Ark. App. 247, 713 S.W.2d 255 (1986) (per curiam). Moreover, to hold that this court’s procedural rules can alter the jurisdictional mandates fixed in the State Constitution is a unique conclusion indeed.
This court has already decided this jurisdictional issue. See McLain v. Miller County, 180 Ark. 828, 23 S.W.2d 264 (1930). In McLain, a county judge first sought to collect on promissory notes issued by the county to his sisters. The county court authorized payment. A taxpayer appealed to circuit court, and that court held the county judge had no interest in the notes. The county judge then tried to substitute his sisters as parties at the circuit court level, and the circuit court denied the motion. We agreed on appeal and said:
An additional reason why the amendment [substituting the sisters as parties] could not be made in this case is that the circuit court had no original jurisdiction of a claim against the county. The county court had exclusive original jurisdiction. The circuit court can try a case of this kind; has jurisdiction to do so only when it is appealed from the county court. To permit an amendment substituting a party in the circuit court in this case, would be permitting the circuit court to exercise original jurisdiction, and this it cannot do.
McLain v. Miller County, 180 Ark. at 835, 23 S.W.2d at 267. See also Madison County v. Nance, 182 Ark. 775, 32 S.W.2d 1073 (1930) (new pleadings and new issues cannot be filed in circuit court in an appeal from county court due to lack of original jurisdiction).
The majority attempts to distinguish the McLain case from the instant case on grounds that the county judge in McLain had no interest in the promissory notes in county court or circuit court. But that analysis misses the mark. The issue in McLain was whether the circuit court could exercise original jurisdiction over the sisters, as the issue in the case at hand is whether the circuit court can assume original jurisdiction over the Seth Family Trust. Of course, the answer in both cases is “no,” as is made abundantly clear in McLain v. Miller County, supra.
The majority assumes the transferred interest from Cooper Communities to the Seth Family Trust is the same. It may or may not be, but in any case that is for the court of original jurisdiction to determine — not the appellate court. We embark down a rocky road when we permit appellate courts to exercise original jurisdiction over new parties and permit new parties to intervene on appeal. It is bad precedent and a case that should not be driven by considerations of judicial economy.
I respectfully dissent.
Imber, J., joins.