Nunez v. O. K. Processors, Inc., 5-3328
| Citation | 238 Ark. 429,382 S.W.2d 384 |
| Decision Date | 05 October 1964 |
| Docket Number | No. 5-3328,5-3328 |
| Parties | Art NUNEZ et al., Appellants, v. O. K. PROCESSORS, INC., Appellee. |
| Court | Supreme Court of Arkansas |
A. A. McCormick and Donald P. Callaway, Fort Smith, for appellants.
Bethell & Pearce and Donald P. Callaway, Fort Smith, for appellee.
The appellee, O. K. Processors, Inc., brought suit against the appellant, Art Nunez, in the state of Nevada. Nunez won the case and was awarded a judgment for costs of $15.85 and for an attorney's fee of $400.
Nunez and his Nevada lawyer, John F. Mendoza, then filed the present petition, verified by their local attorney, to register the Nevada judgment in the Sebastian circuit court under the Uniform Enforcement of Foreign Judgments Act. Ark.Stat.Ann., Title 29, Ch. 8 (Repl.1962). Upon filing their petition they obtained a writ of execution against O. K., the judgment debtor. The trial court sustained a demurrer to the petition, directed that any future petition be verified by Nunez himself, and quashed the writ of execution. Pursuant to our suggestion in a preliminary opinion, Nunez v. O. K. Processors, Inc., Ark., 381 S.W.2d 754, the parties corrected a deficiency in the record by obtaining a final judgment in the court below. We now consider the appeal upon its merits.
The petition to register the Nevada judgment was awkwardly drafted, in that both the caption and the body of the petition followed the style of the Nevada case by referring to O. K. as the plaintiff and to Nunez as the defendant. It was, however, signed and verified by A. A. McCormick as attorney for the petitioners, Nunez and Mendoza. This ostensible reversal of roles was the basis of O. K.'s demurrer, which asserted that the failure to identify the petitioners created a defect of parties.
The demurrer should have been overruled. On demurrer doubts must be resolved in favor of the sufficiency of the petition. This petition asked that the Nevada judgment be registered under the Uniform Act, supra. An authenticated copy of the Nevada judgment was attached as an exhibit to the petition. There cannot be the slightest doubt that Nunez and Mendoza are seeking to enforce the Nevada judgment. It is absurb to suppose that O. K. was misled into thinking that it was really the plaintiff in the Arkansas proceeding. This petition was good against demurrer.
In insisting that Nunez should have verified the petition in person the appellee relies upon Ark.Stat.Ann. § 27-1108 (Repl.1962). This statute permits a party to object to verification by the opposing attorney when the moving party does not believe that the attorney can truthfully verify the pleading and that the matters alleged are within the personal knowledge of the adverse litigant himself. The basic premise for the appellee's motion to verify--that the facts were...
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