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not solely at fauJt. The Richardson court said, "We recognized that the only evidence tending to disprove the allegations of negligence against Rich,lrdson was her own testimony regarding the cause of the accident." Last, in 1i1rrise, 303 Ark. 576 798 S.W2d 684, the only evidence tending to excuse Turrise's failure to keep the van on the road was hi own testimony of a sudden emergency. Testimony and physical evidence presented showing Turrise was at fault, along with the lack of any independent evidence beyond Turrise's own testimony to show that he was not at fault gave rise to this court's determination that the trial court was found not to have abused its discretion in granting a new trial.
In my view, the cases relied upon by the majority opinion involve proof that is considerably distinguishable from the evidence before the jury in the present case. Here, evidence of a substantial and independent nature was presented to the jury, which it accepted as evidence that Young and Honeycutt were at least equally negligent. For this reason, I would reverse the trial court's decision, since [ believe it en:ed in finding the jury's verdict was clearly against the preponderance of the evidence.
95-332
1.
Pam TORTORICH v. Tony TORTORICH 919 S.W2d 213 Supreme Court of Arkansas Opinion delivered April 15, 1996 [Petition for rehear ing denied June 3, 1996.*]
CIVIL PROCEDUflE - DISMISSAL OF CAUSE - PENDENCY OF ANOTHER. ACTION BETWEEN SAME ('ARTIES ARISING OUT OF SAME TRANSACTION Oft.. OCCURllENCE. - Rule 12(b)(8) of the Arkansas Rule s of Civil Procedure provides that a cause may be dismissed because of the "pende ncy of another action between the same parties arising out of the same transaction or occurrence"; he.re, when appellee filed his
complaint for absolute divorce ia one county, there was pending in the court of appeals an appeal from another county, initiated by him, concerning not only the "same transaction or occurrence" but also
2.
three issues that were ide ntical. COURTS CONCURIU'NT
JURISDICTION
PRIORITY
OF
*GLAZE,],, would grant. CORlllN and BROWN,]]., not participating.
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JURISDICTION. - In ch case of concurrent jurisdiction in different tribunals, the first to exercise jurisdiction r ightfully acquires control to the exclusion of, and without the interference of, the other. 3. · COURTS - JURISDICTION - AUTHORITY OF COURT OF COMPETENT JURISDICTION. - Where a case is brought in a court of competent jurisdiction, the authority and control of that court over the case continues until the matter is di posed of in the appellate court. 4. COURTS - JUR.ISOICTION - COUNTY WHERE INITIAL ACTION WAS FILED WAS PROPER VENUE. - Where the initial action filed in one
county was still pending on appeal when the second suit was filed in another county, the first county was the proper venue, and the chan cery court in the second county erred in refusing to dismiss the action filed in that court.
Appeal from Saline Chancery Court, T hird Division; Gary M. Arnold, Chancellor; .reversed and dismissed.
Dodds, Kidd, Ryan & Moore, by: Greg Alagood, for appellant. Hilburn, Calhoo11 Harper, Pruniski & Calhoun, Ltd., by: Sam 1 Hilburn and Dorcy Kyle Corbin, for appellee. ROBERT H. DUDLEY, Justice. The question in this case is whether two counties can concurrently have venue of a divorce action. The parties, Pam and 1bny Tortorich, were married in 1979 and have three children. TI1ey separated on September 17, 1992, and, at that time, both were residents of Pulaski County. Pam Tortorich filed an action for a divorce from bed and board, or a limited divorce, in the Chancery Court of Pulaski County. Pulaski County was the county of proper venue. See Ark. Code Ann. § 9-12-303 (Repl. 1993). Tony Tortoricb filed a counterclaim for an absolute divorce. On December 15, 1993, the Pulaski County Chancery Court awarded Pam a divorce from bed and board, divided the marital property, and awarded alimony, child support, witness fees, and attorney's fees. The chancery court denied and dismissed Tony's counterclaim for absolute divorce. The chancery court retained jurisdiction for further orders. Tony appealed and atgued that the chancellor erred in. dividing the marital property and setting alimony, child support, and fees. He did noc appeal from the dismissal of his counterclaim for absolute divorce. On June 28, 1995, the court of appeals affirmed in part and reversed and rem �nded in part. It reversed a major part of the valuation of
; antal property which, a m
in turn, substa nti al]y reduced the amount would receive, and, as a consequence, it remanded for the
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PuJaski County Chancery Court to reconsider the amount of ali mony Pam should receive. Tortorich v. Tortorich, 50 Ark. App. 114, 902 S.W.2d 247 (l 995). The court of appeals also held that the award of the marital home to appellant wa not ripe for review. Id. at 123, 902 S.W.2d at 252. The mandate from the court of appeals was issued onjuly 18, 1995.
Meanwhile, on March 19, 1994, Tony moved to Saline County. Two days later, on March 21, 1994, which was a year and four months before the court of appeals mandate was issued, Tony filed a complaint for absolute divorce in the Chancery ourt of Saline County. The grounds, eighteen months separation, bad not been available co him in the earlier action. A week later, on March 28, Pam filed a complaint for absolute divorce in Pulaski County Chancery Court.
On April 8, 1994, Pam filed a motion to dismiss the Saline County action because of pcndency of the Pulaski County action between the same parties arising out of the same occurrenoe, and want of proper venue, pursuant to Ark. Code Ann. § 9-12-330(c). The Saline County hancery Court denied Pam's motion to dis miss, heard the case on August 19, 1994, granted Tony an absolute divorce, ordered Tony to pay child support in an amount different from the support et by the Pulaski County court, ordered the marital home sold and the proceeds divided, and denied appellant alimony. T he Saline aunty court based its decision to deny ali mony, in part, upon the assets awarded to appellant under th limited divorce decree, and these assets were subseguently reduced by the court of appeals.
As a result of the Saline aunty Chancery Court's rulings, th.ere are now two con.llicting judgments. On the one hand, the court of appeals bas remanded the case between these parties co the PuJask:i County han.cery ourt and ordered the Pulaski County chancellor to consider increasing the amount of alimony because the value of the marital property has been reduced, affirmed tbe amount of child support, and held that the award of the marital home is not yet ripe for review. On the other hand, the Saline County Chancery Court has ruled that Tony does not have to pay alimony and has ordered the marital home sold and the proceeds divided.
Pam appeals and argues that the Saline County chancellor
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erred in denying her motion to dismiss. The assignment of error is well taken for two reasons.
[1] Rule 12(6)(8) of the Arkansas Rules of Civil Procedure provides that a cause may be dismissed because of "pendency of another action between the same parties arising out of the same transaction or occurrence." Id. When Tony filed his complaint in Saline County, there was pending in the court of appeals an appeal from Pulaski County, initiated by Tony, concerning not only the "same transaction or occurrence" but three issues that were identical. These issues involved alimony, child support, and disposition of the marital home.
[2, 3] We have held "[i)n case of concurrent jurisdiction in different tribunals, the first exercising jurisdiction rightfully acquires control to the exclusion of, and without the interference of, the other." Doss v. Taylor, 244 Ark . 252, 257, 424 S.W2d 541, 544-45 (1968). When a case is brought in a court of competent jurisdic tion, the authority and control of that court over the case continues until the matter is disposed of in the appellate court . Vaughan v. Hill, 154 Ark. 528, 242 S.W. 826 (1922); McCarther v. Green, 49 Ark. App. 42, 895 S.W2d 562 (1995); Cotton v. Cotton, 3 Ark. App. 158, 623 S.W.2d 540 (1981); see also Jones v. Garratt, 199 Ark. 737, 135 S.W.2d 859 (1940).
In Moore v. Price, 189 Ark. 117, 70 S.W2d 563 (1934), the appellant brought a suit to foreclose on property in chancery court, while at the same time bringing an action in replevin in circuit court· two separate "causes of action" on the same subject matter. Id. at 119, 70 S.W.2d at 564. We held that the chancery court, being the first to acquire jurisdiction, had jurisdiction to bring adequate and complete relief, and the appellant could not bring an action for replevin in circuit court. Our reasoning was as follows:
["]This rule rests upon comity and the necessity of avoiding conflict in the execution of judgments by independent courts, and is a necessary one because any other rule would unavoidably lead to perpetual collision and be productive of most calamitous results." 15 C.J. 1134.
Bailey on Jurisdiction, page 61, states: "In the distribu tion of powers among courts it frequently happens that juris diction of the same subject-matter is given to different courts. Conflict and confusion would inevitably result unless
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some rule was adopted to prevent or avoid it. Therefore it has been wisely and uniformly determined that whichever court, of those having such jmisdiction, first obtains jurisdic tion, or, as is sometimes said, possession of the cause, will retain it throughout to the exclusion of another.' The same rule is announced in "Courts and Their Jurisdiction" by Works, pages 68 and 69.
Id. at 121-22, 70 S.W2d at 565. This case illustrates "confusion, conflict and colli ion." It is an example of the "calamitous" result envisioned in Moore v. Price. Here the two rulings by the two different chancellors have resulted in one order allowing alimony and one denying �t. child support has been set in two different amounts, and one order gives the marital home to Pam until the youngest child reaches eighteen while the other orders the borne sold and the proceeds divided.
In addition, Ark. Code Ann. § 9-12-303(c) (Rep!. 1993) provides:
(c) When a spouse initiates an action against the other spouse for an absolute divorce, divorce from bed and board, or separate maintenance, then the venue for th initial action shall also be the venue for any of the three (3) named actions filed by the other spouse, regardless of the residency of the other spouse.
[4] This statute could be i. nterpreted in either of two ways: It could be interpreted to mean that any claim available to the other spouse must be filed in the same venue as long a.� the initial action is still pending, or it might mean chat any claim available to the other spouse must be filed in the same venue, without regard to whether the initial action is still pending. We need not decide which inter p.retation we will ultimateJy apply because, under either interpreta tion, the initial action filed in Pulaski County was still pending on appeal when the second suit was filed in aline County. Thus Pulaski County was the county of _proper venue, and the Saline County court erred in refusing to dismiss the action filed in that court.
Reversed and dismissed. GLAZE, J., concurs.
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filed by the other spouse, regardless of the residency of the other spouse.
Under the plain language of§ 9-12-303(c), once a plaintiff spouse has filed for (1) absolute divorce, (2) limited divorce or (3) separate maintenance, the defendant spouse can no longer go to a different court (division or county) to file any one of the three named marital-related actions. lnstead, the defendant spouse, regard.less of his or her own county residence, must file any oew marital cause of action in the same action the plaintiff spouse already initiated.
ln the present case, Pam Tortorich filed her limited divorce action against Tony in the Pulaski County Chancery Court. The Pulaski County Chancery Court granted a limited divorce, and while that part of the chancellor's decision was affirmed on appeal, the court of appeals reversed the Tortorich's case to reconsider the amowit of alimony to be awarded Pam. Tony moved to Saline County and filed for absolute divorce which the Saline County Chancery Court eventually granted. Again, this case is the type situation contemplated by§ 9-12-303 which requires Tony to seek his relief in the initial action tiled in the Pulaski County Chancery Court, so all marital-related issues can be decided by one chancery judge. Consequently, the Saline County Chancery Court here should have transferred Tony's action to the Pulaski County Chan cery Court or, altei:oatively, dismissed his action.
Although T agree with the majority court that the Saline County Chancery Court has no venue over Tony's absolute divorce action, I do so because§ 9-12-303(c) clearly places his action in the Pulaski County Chancery Court. l would remand this case with directions to transfer this case to the Pulaski County Chancery Court which has jurisdiction and venue of Pam's limited divorce action. CORBIN and BROWN, JJ., not participating.