On August 17, 1998, petitioners, Cooper Communities, Inc., and Jan L. Seth and Judith F. Seth, co-trustees of the Family Trust of Jan L. Seth and Judith F. Seth, filed a petition for writ of certiorari, requesting that we quash the Benton County Circuit Court’s order dismissing the petitioners’ case and order the circuit court to proceed with a trial de novo. In support of their position, the petitioners argue that the circuit court was wholly without jurisdiction to dismiss the case and that a writ of certiorari is the only available remedy to cure the circuit court’s erroneous exercise of jurisdiction. We disagree, and we deny the petition for writ of certiorari.
In October 1993, Cooper Communities filed a petition in the Benton County Court seeking the establishment of a private road crossing through the respondents’ property and onto Cooper Communities’ land-locked property. After conducting hearings, the county court issued a final order, in October 1995, creating a permanent thirty-foot right-of-way across the respondents’ property. Subsequently, on December 11, 1995, the respondents, as owners of property crossed by the right-of-way, appealed the county court’s decision to the Benton County Circuit Court.
Also in December of 1995, Cooper Communities conveyed its interest in its formerly land-locked tract and its right-of-access via the permanent right-of-way, to Jan L. Seth and Judith Seth, as co-trustees of the Family Trust of Jan L. Seth and Judith F. Seth. As a result of the transfer, Cooper Communities filed a motion in the circuit court to either substitute or join the Seth Family Trust as a party in the case. In June of 1996, the circuit court granted Cooper Communities’ motion and joined the Trust as a party.
Following the circuit court’s decision to join the Trust as a new party, respondents Mikel D. Lott and Luyen Lott challenged the joinder and, in December 1996, filed a petition for a writ of prohibition in this court. Specifically, the Lotts claimed that the joinder deprived the circuit court of jurisdiction because the claim before it was no longer the same as the one tried by the county court. In our May 27, 1997, opinion, Lott v. Circuit Court, 328 Ark. 596, 945 S.W.2d 922 (1997), we held that a substitution of the real party in interest, upon a transfer of interest, is permitted as a procedural matter pursuant to Ark. R. Civ. P. 17(a) and 25(c). Further, we noted that there was no assertion that the claim had increased or that it differed from the original claim in any way or that the circuit court would be required to consider any new pleadings. Moreover, we found that there was no evidence demonstrating that the circuit court was wholly without jurisdiction. Accordingly, we denied the writ of prohibition. Id. at 599.
However, in dicta in Lott, we noted that if the circuit court ultimately found that the joinder of the Trust “in some way makes the claim different” than the one presented by Cooper Communities to the county court, then the circuit court could “take appropriate action.” Lott, 328 Ark. at 599. From such a decision, whether or not the circuit court reached the merits of the case, we suggested that an appeal would presumably He. Id. On September 23, 1997, after the case returned to the circuit court, the circuit court granted a motion to transfer the case back to the county court and noted with emphasis the precise language in Lott permitting it to “take appropriate action” if it found that joinder “in some way makes the claim different.” Notably, the petitioners failed to appeal from the circuit court’s decision granting the transfer, and, on May 8, 1998, the petitioners participated in hearings before the county court.
Following the May 8, 1998, hearing, the county court issued a letter order on May 22, 1998, concluding that the Trust made no claims different from the original claim, presented by Cooper Communities in the original county court case, and that the location and route of the road selected and laid out in the previous county court case was the most feasible route onto the land-locked property. Although the county court adopted the location and route of the right-of-way as laid out in the prior case, it specifically reserved the question of damages for the taking of the land until it heard testimony at a hearing scheduled for July 14, 1998. The county court also noted that its final order, reflecting all findings, would be entered following the July 14th hearing.
The scheduled July 14, 1998, hearing never took place because the petitioners precipitously filed a motion in the circuit court on May 27, 1998, requesting that the circuit court adopt the findings made by the county court in its May 22, 1998, letter order. On June 16, 1998, in a bench ruling, the circuit court denied the motion to adopt the county court’s findings and noted that the case had been terminated upon its transfer to county court. Additionally, on June 30, 1998, the circuit court issued an order of dismissal. From this order of dismissal comes the instant petition for writ of certiorari.
A writ of certiorari is an extraordinary writ that can only be granted when the petitioner is clearly entitled to relief and there is no other adequate remedy at law. This court will grant a writ of certiorari only when there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record. Although certiorari is not available to control judicial discretion, we will grant it to control plain, manifest, clear, great, or gross abuse of discretion. See Fulkerson v. Thompson, 334 Ark. 317, 974 S.W.2d 451 (1998) (per curiam).
Flere, we deny the petition because the petitioners failed to avail themselves of other adequate remedies at law. Specifically, the petitioners failed to appeal from the circuit court’s September 23, 1997, final order granting the transfer back to county court. See Batesville v. Ball, 100 Ark. 496, 500-01, 140 S.W. 712 (1911). Also, rather than awaiting the scheduled July 14, 1998, county court hearing resolving damages and rather than awaiting a final county court order, the petitioners returned to circuit court, urging it to adopt the county court’s findings. Should the petitioners have awaited a final county court order, mindful that (1) the county court hearing resulted in a letter order in their favor, and (2) the May 22, 1998, letter order was not a final order, they could have appealed to the circuit court at the appropriate time. However, these are not the facts in the record before us. Moreover, because the petitioners prematurely approached the circuit court, the issue of damages had not yet been reached by the county court and could not be heard in the first instance by the circuit court. We cannot grant an extraordinary writ when the petitioners failed to pursue other adequate remedies at law and are responsible for the “procedural morass” of which they now complain.
However, we note that the circuit court erred in entering an order of dismissal. As of September 23, 1997, the circuit court lost jurisdiction over the case and could not, therefore, subsequently dismiss the case on June 30, 1998. Accordingly, although we agree that the circuit court lacked jurisdiction to “dismiss” a case previously transferred, in light of the petitioners’ failure to properly pursue an appeal from the circuit court’s final order or from the county court to the circuit court, we deny the petition for writ of certiorari.
Glaze and Thornton, JJ., dissent. Smith, J., not participating.