Harris v. Henry
Supreme Court of Arkansas
The appeal to the chancery court will be treated as a motion to quash the supersedeas. 36 Ark. 481; Sand. & H. Dig. § 3798. The supersedeas was properly issued. Kirby’s Digest, § 3906; No objection was raised to the schedule, and there was no fact to be determined by the clerk. Kirby’s Digest, § § 3909-39*5-
1Dissent
Hiuu, C. J.,
(dissenting.) That the substance should always control the form is axiomatic and readily yielded to, but in this case the invocation of that salutary principle calls for a reversal for a matter not presented to the trial court. There is no such proceeding authorized as an appeal from the action of the clerk in issuing a supersedeas. The remedy is in the court from which the execution issued to quash the execution or levy upon the grounds then presented to it. If the clerk refuses the super-sedeas, the rémedy is by mandamus to compel him to issue it when the applicant shows himself…
2Cases cited1 opinion
- Chambers v. PerrySupreme Court of Arkansas · 1886