Chesnut v. Billings
Decision Date | 18 March 1969 |
Docket Number | Nos. 41891,41892,s. 41891 |
Citation | 452 P.2d 138 |
Parties | Ann CHESNUT, Plaintiff in Error, v. Herman BILLINGS, Defendant in Error. Eunice LeBARRE, Plaintiff in Error, v. Herman BILLINGS, Defendant in Error. |
Court | Oklahoma Supreme Court |
Syllabus by the Court
1. Default judgments are not viewed with favor, and a petition to vacate a default judgment is addressed to the sound legal discretion of the trial court, and its decision vacating a default judgment will not be disturbed on appeal unless an abuse of discretion clearly appears.
2. Where defendant, against whom a default judgment has been rendered, files a petition to vacate such default judgment after the term, under 12 O.S.1961, Sections 1031 and 1033, and plaintiff, upon the overruling of his general demurrer to such petition, elects to stand on the demurrer, and refuses to plead further, defendant is not required to prove that he has a valid defense, but the court may enter an order vacating the judgment, and such order is a sufficient adjudication that the defense alleged is valid, as required by 12 O.S.1961, Section 1035.
Appeal from District Court of Oklahoma County; Jo Ann Hennessy, Judge.
Action by defendant, Herman Billings, to vacate default judgments theretofore entered in favor of plaintiffs, Ann Chesnut and Eunice LeBarre. From judgment vacating the default judgments and ordering a trial upon the merits, plaintiffs separately appeal. Affirmed.
Hudson, Hunter & Hyde, Stewart M. Hunter, Oklahoma City, for plaintiffs in error.
Foliart, Shepherd, McPherren & Mills, Oklahoma City, for defendant in error.
The question for decision in these cases is whether the trial court abused its discretion as a matter of law in vacating default judgments in a subsequent term of court. The facts are presented in the pleadings, and the parties will be given their trial court designations.
The pleadings show that plaintiff, Eunice LeBarre, was driving an automobile on June 26, 1964, and her sister, Ann Chesnut, was riding in her car. Plaintiffs were involved in an accident and sustained personal injuries when the defendant, Herman Billings, a resident of Missouri, allegedly drove from a private drive across the highway in front of plaintiffs causing plaintiffs to swerve to the right and overturn their car.
Plaintiffs brought separate suits in April, 1965, and obtained service under the Nonresident Motorist Act, 47 O.S.1961, Sec. 391, et seq. Default judgments were entered in favor of each plaintiff on June 25, 1965.
On October 11, 1965, defendant, Herman Billings, filed petitions to vacate the default judgments entered in each case and attached to each of his petitions a copy of the default judgment, an affidavit signed by defendant, and an answer to each of plaintiff's petitions.
On October 15, 1965, each of the plaintiffs filed a demurrer to defendant's petitions to vacate default judgments and attached to each demurrer, and made a part thereof, was an affidavit signed by counsel for plaintiffs and a copy of a letter written by counsel and addressed to defendant, dated August 18, 1964.
On November 24, 1965, the trial court overruled the demurrer of each of the plaintiffs; each plaintiff elected to stand upon her demurrer and the trial court rendered judgment vacating the judgments theretofore entered against defendant on June 25, 1965, and ordered that the cases be tried on plaintiffs' original petitions and the answers of the defendant. Plaintiffs appealed and the cases have been consolidated for briefing and disposition. The briefs and records in each case are identical.
We observe that the defendant does not attack the jurisdiction of the trial court to enter the default judgments for plaintiffs, and does not contend that they were illegally entered. His sole contention is that these default judgments were appropriately vacated.
The questions to be determined, as stated by plaintiffs, are as follows:
'(1) Does the defendant's petition to vacate judgment, with the attached exhibits, substantially comply with the Oklahoma Statutes, and state facts which constitute a statutory ground for vacation as well as (2) facts which constitute a valid defense to the original action?'
These questions present the issues, however, in view of the affidavit attached to the demurrers, as hereafter noted, we are of the view that plaintiffs' demurrer should be treated also as motions for judgments on the pleadings.
Defendant's petitions to vacate the default judgments are based upon the provisions of 12 O.S.1961, Section 1031, Subsection Seven, which authorizes a district court to vacate a judgment after the term at which the judgment was entered 'For unavoidable casualty or misfortune, preventing the party from prosecuting or defendant.'
The facts show that defendant's residence at the time of the accident was 5526 Parks Street, Kansas City, Missouri. About two weeks after the accident he changed his address and was absent from Kansas City on vacation at the time the postman attempted to deliver notice of suit. The letters containing the notices of suits were addressed to 5526 Parks Street, but were returned to plaintiffs' attorney undelivered. There is no suggestion that defendant was attempting to avoid summons, or was negligent in any way. Defendant had no knowledge of the actions filed against him until about the 13th of August, 1965, when he received a letter from his insurance company in which he was informed that plaintiffs were attempting to collect the judgments from defendant's insurance company.
The letter, written by plaintiffs' attorney, attached to plaintiffs' demurrers, and mailed to defendant on August 18, 1964, contain the following pertinent information:
...
To continue reading
Request your trial-
Sprung v. Negwer Materials, Inc.
...St.2d 170, 226 N.E.2d 111 (1967); City of Middletown v. Campbell, 21 Ohio App.3d 63, 486 N.E.2d 208 (1984); OKLAHOMA: Chesnut v. Billings, 452 P.2d 138 (Okla.1969); Nave v. Conservative Loan Co., 117 Okl. 85, 245 P. 65 (1926); OREGON: Fleetwood Inv. Co., Inc. v. Thompson, 270 Or. 580, 528 P......
-
Burroughs v. Bob Martin Corp.
...showing of abuse of discretion must be made where a judgment has been set aside than where it has been refused. See also Chesnut v. Billings, Okl., 452 P.2d 138. From our examination of the record in the present case we are unable to say, either as a matter of law or fact, that it clearly a......
-
Feely v. Davis
...175 (Okla.1966). A petition to vacate a default judgment requires that sound discretion be exercised by the trial court. Chesnut v. Billings, 452 P.2d 138 (Okla.1969). In reviewing the circumstances before us it is important to note that while Feely's response was delivered to counsel for D......
-
Gearhart Industries, Inc. v. Grayfox Operating Co.
...of the particular case and a petition to vacate a judgment is addressed to the sound legal discretion of the trial court. Chestnut v. Billings, 452 P.2d 138 (Okl.1969). We find no abuse of ATTORNEY FEES A separate hearing was held on September 24, 1990, to determine attorney fees. The trial......