declining to consider an affidavit attached to an appellate brief
How later courts described this case
- declining to consider an affidavit attached to an appellate brief
Written by the judges who cited it.
The opinion
DONALD L. Corbin, Justice. Petitioner, the law firm of Boswell, Tucker & Brewster, filed this original action for a writ of prohibition against respondent, the Honorable Phillip Shirron of the Saline County Circuit Court. Respondent did not respond, and we requested briefs from both parties. Boswell, Tucker & Brewster v. Shirron, 322 Ark. 111 , 906 S.W.2d 315 (1995) (per curiam). Petitioner seeks a writ prohibiting respondent from exercising “any further jurisdictional authority over any Boswell law firm case” and from “presiding as the judge over any Boswell law firm litigation.” Jurisdiction of a petition for writ of prohibition is properly in this court pursuant to Ark. Sup. Ct. R. 1-2 (a) (6).
On May 25, 1995, respondent entered the following order, which is quoted in its entirety:
IN THE SEVENTH CIRCUIT COURT OF GRANT, HOT SPRING, AND SALINE COUNTIES, ARKANSAS
UNIFORM ORDER
Comes The Honorable Phillip Shirron, to transfer all cases in which the law firm of Boswell, Tucker and Brewster represents any party, to the other divisions of the Seventh Circuit Courts.
IT IS SO ORDERED.
/s/ Phillip Shirron
The Honorable Phillip Shirron
Circuit Judge
Date 5/25/95
On June 2, 1995, respondent entered the following order, which we also quote in its entirety:
IN THE SEVENTH CIRCUIT COURT OF GRANT, HOT SPRING, AND SALINE COUNTIES, ARKANSAS
UNIFORM ORDER
Now, upon reconsideration of the Uniform Order entered by this Court on May 25, 1995, transferring all cases in which the law firm of Boswell, Tucker and Brewster represent any party to the other divisions of the 7th Circuit Courts, the Court finds that said Order should be and is hereby set aside and held for nought.
IT IS SO ORDERED.
/%/ Phillip Shirron
The Honorable Phillip Shirron
Circuit Judge
Date: 6/2/95
Petitioner asserts that, after entering the order on May 25, 1995, respondent lacked any further jurisdiction to act in any of petitioner’s cases. Respondent argues that petitioner’s attack is on the two orders themselves, not on the underlying subject-matter jurisdiction of the circuit court to enter such orders. Therefore, argues respondent, prohibition is not appropriate in this case. Respondent argues fhrther that prohibition is inappropriate because there is no record relative to the circumstances surrounding the issuance of either order. We agree with respondent’s latter argument.
A writ of prohibition is an extraordinary writ and is never issued to prevent a trial court from erroneously exercising its jurisdiction, but only where it proposes to act in excess of its jurisdiction. Ridenhower v. Erwin, 303 Ark. 647 , 799 S.W.2d 535 (1990). Issuance of prohibition is discretionary in cases of pressing necessity and should never be granted unless the petitioner is clearly entitled to relief. Id. The record before us does not show that respondent is proposing to act in excess of its jurisdiction or that petitioner is clearly entitled to the relief it requests. Absent such proof, there is no basis upon which to grant the extraordinary relief requested in this case.
Petitioner contends that the reason for the entry of the May 25 order was a recusal required by respondent’s bias or prejudice against petitioner as counsel. Petitioner relies on Matthews v. State, 313 Ark. 327, 331 , 854 S.W.2d 339, 341 (1993), wherein we acknowledged authority for the proposition that, “absent a statutory provision to the contrary, a determination of disqualification will not prevent a judge from reassuming full jurisdiction if the disqualification has been removed.” Despite petitioner’s strong suggestions to the contrary, the record does not reveal that the reason for the May 25 transfer order was respondent’s disqualification; nor does the record reveal that any reason for the alleged disqualification exists. In this respect, we note that the affidavit attached to petitioner’s brief is not part of the record or the supplemental record filed in this case. We do not consider the affidavit because we do not consider matters outside the record. Craig v. Traylor, 323 Ark. 363 , 915 S.W.2d 257 (1996).
In summary, there is no record to demonstrate any reason for the transfer order, any alleged disqualification, or any continuing reason for any alleged disqualification. There is no identification of which cases, if any, were transferred to other divisions as a result of the May 25 order. Likewise, there is no indication that respondent has taken action in any specific case involving petitioner. Thus, the only issue before us is whether respondent exceeded his jurisdiction in entering the June 2 order. In the absence of a record showing a reason for the transfer order or that any of petitioner’s cases were transferred, we conclude that respondent did not act in excess of his jurisdiction in entering the June 2 order.
The record filed with this petition and the supplemental record do not demonstrate that respondent has acted or has proposed to act in excess of his jurisdiction. Likewise, the record does not show that there is a pressing necessity in this case or that the extraordinary remedy of a writ of prohibition is otherwise clearly warranted. Accordingly, the petition for writ of prohibition is denied.
Brown and Roaf, JJ., dissent.