concurring in part and dissenting in part. I agree with that part of the majority’s opinion affirming the lack of jurisdiction of the first chancellor over ecclesiastical matters. I question, though, whether we should uphold the contempt sanction against the appellee, thereby affirming a fine and jail sentence, when the first chancellor lacked jurisdiction over this matter. I further question whether we should reverse part of the third chancellor’s order based on a legal theory that was not argued at trial or to this court on appeal.
The majority is correct, as a general proposition, that a trial court retains the power to enforce a TRO by contempt sanctions pending a determination of its own jurisdiction over the subject matter. See United States v. United Mine Workers of America, 330 U.S. 258 (1947); Hayes v. Towles, 95 Idaho 208, 506 P.2d 105 (1973). But that proposition appears not to be applicable in this case since the TRO which resulted in the contempt citation was not issued to allow the first chancellor to decide jurisdiction. Indeed, the court said it had jurisdiction in the order. The stated reason for the TRO was to keep Bishop Belin from removing Reverend West from office or obtaining church money.
Decades ago, this court said in discussing contempt sanctions for violating preliminary or permanent injunctions: “However, when the pleadings show on their face that the court is wholly without jurisdiction of the subject matter set forth therein, any preliminary order made or final judgment rendered is void.” Pitcock v. State, 91 Ark. 527, 534, 121 S.W. 742, 745 (1909). In 1968, the California Supreme Court held that where the trial court acted in excess of its jurisdiction in issuing the TRO, violation of the void order should constitute no punishable wrong. In Re Berry, 65 Cal. Reptr. 273, 436 P.2d 273 (1968).
More importantly, I do not believe that the law surrounding this issue is so crystal clear that we should decide the question without giving counsel an opportunity to argue the point. The majority is saying that the first chancellor had jurisdiction only to issue the TRO and then enforce the order through contempt sanctions; otherwise, he lacked jurisdiction over the subject matter. The majority is also saying that the third chancellor who voided the first chancellor’s contempt order lacked the power to do so. I do not, however, perceive a lack of subject matter jurisdiction in the third chancellor to rule on the question which would entitle us to raise the issue on our own. Can we, then, reverse the third chancellor on a point not argued? I do not think so.
It has become a legal maxim that we will not entertain arguments not made below. See, e.g. Johnson v. Ramsey, 307 Ark. 4, 817 S.W.2d 200 (1991); Smith v. City of Little Rock, 305 Ark. 168, 806 S.W.2d 371 (1991). We should decline to do so in this case.