Ross v. McDaniel

George Rose Smith, Justice. This is an action for malpractice brought by the appellees, Dora H. McDaniel and her husband, against Dr. Ross. In the trial court Dr. Ross moved for a summary judgment, on the ground that the suit is barred by the two-year statute of limitations. Ark. Stat. Ann. § 37-205 (Repl. 1962). The trial judge denied the motion, holding the statute to be unconstitutional insofar as it denied a remedy to the plaintiffs. Counsel for Dr. Ross perfected an appeal as a precautionary measure, to guard against the possibility that the trial court’s order might be held to be appealable under the final paragraph of Ark. Stat. Ann. § 27-2101 (Supp. 1971). That paragraph provides for appeals from orders involving the constitutionality of any statute.

The order is not appealable. We have twice held that the statute in question provides for an appeal only if the order in question is a final judgment. Wright v. City of Little Rock, 245 Ark. 355 , 432 S.W. 2d 488 (1968); State v. Greenville Stone & Gravel Co., 122 Ark. 151 , 182 S.W. 555 (1916). Moreover, we have also held that an order denying a motion for a summary judgment is not appealable. Widmer v. Fort Smith Vehicle & Mach. Corp., 244 Ark. 971 , 429 S.W. 2d 63 (1968). Upon either ground the appeal must be dismissed, in harmony with our long-standing-policy against the piecemeal consideration of cases.

Appeal dismissed.