Nunez v. O.K. Processors, Inc., 5-3328

• Citation: 381 S.W.2d 754,238 Ark. 346
• Decision Date: 14 September 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

Page 754

381 S.W.2d 754

238 Ark. 346

Art NUNEZ et al., Appellants, v. O. K. PROCESSORS, INC., Appellee.

No. 5-3328.

Supreme Court of Arkansas.

Sept. 14, 1964.

A. A. McCormick and Donald P. Callaway, Ft. Smith, for appellants.

Bethell & Pearce, Ft. Smith, for appellee.

GEORGE ROSE SMITH, Justice.

The Uniform Enforcement of Foreign Judgments Act, adopted in Arkansas in 1949, created a simplified method of enforcing foreign judgments. Ark.Stat.Ann., Title 29, Ch. 8 (Repl. 1962). In the case at bar these appellants filed a petition in the circuit court of Sebastian county, seeking to enforce a Nevada judgment against the appellee in the sum of $415.85. This is an appeal from an order sustaining a demurrer to the appellants' petition.

Counsel for the appellee open their printed brief by stating that they feel it to be their duty to call attention to a jurisdictional defect in the record: the want of a final appealable order. Despite this suggested defect counsel proceed to argue the case upon its merits. In the reply brief the attorney for the appellants insists that the order is in fact an appealable one.

The order in question recites that the demurrer is sustained, that the petition is quashed, and that the petitioners are allowed ten days in which to file a proper petition. Within the ten days the appellants filed a notice of appeal in which they stated that they elected to stand upon their pleadings.

The order in itself was not final, for it did not dismiss the parties from the court nor conclude their rights in the subject-matter of the controversy. Piercy v. Baldwin, 205 Ark. 413, 168 S.W.2d 1110. To the contrary, the order recognized the continued pendency of the case by allowing the petitioners ten days in which to amend their pleadings.

It is argued by the appellants that the element of finality was supplied by the declaration in the notice of appeal that they elected to stand upon their pleadings. Substantially this same contention was made in Fairview Coal Co. v. Arkansas Central Ry., 153 Ark. 295, 239 S.W. 1058. In rejecting this argument we said: 'It was clearly an interlocutory order, unless the use of the language to the effect that appellant refused to plead further amounted to a final disposition of the case. We think this language a mere recital of the attitude of appellant, and in no sense an act or order of the court.'

In the past, in the situation now confronting us, it has been our practice to dismiss the appeal 'for want...