Wirges v. Arrington

¶1(concurring). I agree with the Majority that the judgment of dismissal should be reversed; but my reasons for such reversal are entirely different from those contained in the Majority Opinion; and I now give my reasons for reversal and the procedure which I think the Majority should have ordered in this case:

¶2The transcript before us in this case shows that on September 11, 1964 Judge Wiley W. Bean (Judge of. the Conway Circuit Court) entered into an exchange agreement1 with Judge Paul X. Williams (Chancellor of the 14th Chancery District), which exchange agreement was filed in the records of this case on September 14, 1964, and reads as follows:

“By consent and agreement, Judge Paul X. Williams, Chancellor of the Fourteenth Chancery District, exchanges circuits with Judge Wiley W. Bean, Judge of the Fifth Judicial Circuit, for the trial and disposition of the case of Gene Wirges v. Carl Lee Arrington, pending in the Circuit Court of Conway County, Arkansas. This Exchange Agreement is to remain in full force and effect for such period as is found necessary for the trial and final disposition of the case herein designated.

‘ ‘ The Clerk of the Circuit Court is ordered and directed to enter upon the Circuit Court Records this Exchange Agreement, evidencing the exchange of circuits as herein set out.”

¶3So far as the transcript before us shows, this exchange agreement is in full force. It is true that there appears to have been endorsed on the exchange agreement on October 14, 1964 these, words: “Cancelled October 14, 1964 Wiley W. Bean.” An exchange agreement cannot be cancelled by a unilateral action of one of the parties. Judge Bean and Judge Williams had mutually agreed to the exchange .agreement; and Judge Bean could not cancel by a unilateral action. So the exchange agreement, dated September 11, 1964 and filed September 14,1964, is valid and binding,2 and all further steps in this case should have been taken in the Circuit Court by Judge Paul X. Wiliams. Yet, without any further pleadings having been filed and without motion having been made or notice given or entered, and order of dismissal was made in this cause on January 22, 1965 by Judge Wiley W. Bean; and from that said order of dismissal Wirges prosecutes this appeal.

¶4I would reverse the order of dismissal. It was not made by the Judge to whom the case had been assigned by the exchange of circuits agreement. The petition for mandamus is still pending in the Conway Circuit Court; and I feel sure that Judge Paul X. Williams, the Judge on Exchange, would (if my views were adopted) take prompt steps to see that summons be duly served on Arrington in Conway County, and that the petition for mandamus be promptly and speedily heard; and exercising our supervisory powers under Art. VII, Sec. 4 of the Constitution, I think this Court should direct that Judge Paul X. Williams, Judge on Exchange, have jurisdiction of this case until it is concluded in the Conway Circuit Court.