Cherry v. Milam

• Citation: 66 Okla. 162,168 P. 241,1917 OK 476
• Decision Date: 09 October 1917
• Docket Number: Case Number: 5944
• Parties: CHERRY v. MILAM et al.
• Court: Supreme Court of Oklahoma

1917 OK 476

168 P. 241

66 Okla. 162

CHERRY v. MILAM et al.

Case Number: 5944

Supreme Court of Oklahoma

Decided: October 9, 1917

Syllabus

¶0 1. New Trial--Grounds--Laches.

The laches of a party is no ground for a new trial.

2. Trial--Order of Trial--Discretion of Court.

"The statute prescribing the order of trial of cases upon the trial calendar is not mandatory, but vests large discretion in the trial court to dispose of the causes in such order as will most economically and speedily dispose of the business before the court."

Error from District Court, Okmulgee County; Ernest B. Hughes, Judge.

Suit by A.M. Milam, as guardian of Sarah C. Smith, a minor, against J. A. Roper, Hannah Roper, and Annie Grayson. Judgment for plaintiff, demurrer to petition of Annie Grayson for new trial sustained, and petitioner brought error. On death of petitioner, the proceeding in error was revived in the name Robert Cherry, her sole heir, as plaintiff in error. Affirmed.

Orlando Swain, for plaintiff in error.

Herbert E. Smith, for defendant in error Milam.

E. M. Carter, for defendants in error Roper.

BLEAKMORE, C.

¶1 On December 19, 1911, A.M. Milam, guardian of Sarah C. Smith, a minor, commenced suit against J. A. Roper, Hannah Roper, and Annie Grayson to recover on a promissory note of date June 21, 1910, executed by J. A. Roper to Steve Grayson, the then guardian of such minor, and to foreclose a mortgage securing the same upon a lot in the city of Okmulgee, signed by J. A. and Hannah Roper. In the petition it was also alleged that Annie Grayson claimed an interest in the mortgaged realty under a deed of November 18, 1911, from Steve Grayson. All three defendants answered jointly by unverified general denial. On March 13, 1912, judgment was rendered for plaintiff. After the term, on July 5, 1912, by virtue of section 5037, Rev. Laws 1910, Annie Grayson applied for a new trial, and in her amended petition therefor alleged:

"(3) That said cause was assigned for trial in this court by the clerk of this court upon the trial docket for the 11th day of March, 1912, as will more fully appear by the records of this court in this cause, by the court calendar and regular assignment of cases made and published by the clerk of this court. That on said 11th day of March, 1912, this defendant was present in court with her attorneys. That said cause was not called for trial on said date, nor was any order of this court made further assigning said cause for trial on a day certain, nor Was said cause continued by agreement or by any order of this court to said 13th day of March, or any other date, nor was said cause ever set for trial by this court on the said 13th day of March. That said cause was called up for trial by the plaintiff herein in the absence of this defendant and in the absence of her attorneys, and that neither this defendant nor her attorneys had any notice or knowledge that said cause would be for trial on said date. That in the absence of this defendant and of her attorneys said decree was entered, and this defendant had no opportunity to be present and to make her defense to said action. That, if this defendant or her attorneys had had any notice or knowledge that said cause would be for trial on said date, this defendant and her attorneys would have been present and made her defense, and said decree would not have been entered against her and against her property. That this defendant has a just and meritorious defense to said action of the plaintiff, as will more fully appear hereafter. That this defendant and her attorneys did not learn that a decree had been entered against her in this cause until long afterwards. That this defendant was unavoidably absent on said date. That this defendant has been ready and willing at all times to appear in said cause and make her defense to said action, and would have been present on the said 13th day of March, 1912, had she or her attorneys known that said cause would be tried on said date."

¶2 She further pleaded as a defense to plaintiff's cause of action that she was the owner in her own right of the mortgaged property, having purchased the same with her separate funds in 1903, but that the deed therefor, without her knowledge or consent, was executed to her then husband, Steve Grayson, of which she did not learn until long thereafter; that she erected valuable improvements thereon and has continuously occupied the premises since said purchase; that in 1904 her husband abandoned her, and in January, 1909, she obtained a divorce from him; that on November 18, 1909, Steve Gray-son executed a deed of conveyance of said...