Crossan v. Cooper

• Decision Date: 23 December 1913
• Citation: 137 P. 354,41 Okla. 281,1913 OK 740
• Parties: CROSSAN v. COOPER.
• Court: Oklahoma Supreme Court

137 P. 354

41 Okla. 281, 1913 OK 740

CROSSAN v. COOPER.

Supreme Court of Oklahoma

December 23, 1913

Syllabus by the Court.

There can be no judgment by default where there is on file an answer or other pleading raising an issue of law or fact.

Before a default judgment can be properly entered, the answer or other plea must be disposed of in an orderly way by motion demurrer, or in some other manner.

A petition, to recover on a foreign judgment, on its face clearly showed that the cause of action therein set out was barred by the statute of limitations; an answer was filed specifically setting up the bar of the statute, which answer was not attacked by demurrer or motion; the court, on motion of plaintiff, in the absence of defendant and his counsel entered a purported default judgment, and trial without a jury was had on the petition and answer; the only evidence introduced was certified copies of the petition, answer reply, and judgment of the original trial court. Held, the defense of the statute of limitations, being well pleaded, and properly before the court, should have been by the court sustained, and there being no competent evidence before the court sustaining the purported cause of action, and the defense pleaded being full and sufficient, the court committed reversible error in entering judgment for plaintiff.

Commissioners' Opinion, Division No. 1. Error from Superior Court, Pottawatomie County; Geo. C. Abernathy, Judge.

Action by William Cooper against W. B. Crossan. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

P. O. Cassidy, of Shawnee, for plaintiff in error.

E. E. Hood and Lydick & Eggerman, all of Shawnee, for defendant in error.

ROBERTSON C.

This was an action on a foreign judgment rendered against W. B. Crossan in the district court of Miami county, Kan., on June 8, 1908, in the sum of $1,000 and interest, in favor of Wm. Cooper, who on September 24, 1910, filed his petition in the superior court of Pottawatomie county and sought thereby to recover on, and keep alive, the said judgment in this state. The petition is in the usual form and has attached thereto and made a part thereof the petition, answer, reply, and judgment of the district court, the opinion and judgment of the Supreme Court of Kansas affirming the decision of the district court, together with an opinion and judgment of the Supreme Court of Kansas denying a rehearing, together with the mandate of the said Supreme Court of Kansas, all of which were attached to said petition as exhibits and certified to by the clerk of the district court of Miami county, Kan. Crossan answered first by general denial; second, by a plea of the statute of limitations in the following language: "As a second and further defense to the cause of action of plaintiff, the defendant alleges: That he has been an actual and bona fide resident of Pottawatomie county, state of Oklahoma, for more than eight years last past, and is now a resident in good faith of said county and state, and that said residence has been actual and continuous. That the said cause of action as set out and alleged in the petition of plaintiff did not accrue to said plaintiff at any time within one year before the commencement of this suit, and that said cause of action is barred by the statute of limitations in such cases made and provided." This answer was filed January 21, 1911. On April 19, 1911, the case being reached for trial, and neither the defendant nor his attorney appearing, it was ordered that the defendant be adjudged in default, and, the plaintiff waiving a jury, trial was had to the court; evidence was introduced, and a judgment in favor of plaintiff and against the defendant was entered in the sum of $1,324.20. On the same day the defendant filed his motion to set aside the judgment, alleging that default should not have been adjudged for the reason that defendant had answered in due time, and the said answer alleged that the cause of action stated in the petition was barred by the statute of limitations, which allegations were not denied by reply, or in any other manner, by the plaintiff, and that the petition shows on its face that the suit was on a foreign judgment obtained June 8, 1908, and that this action was not filed until December 24, 1910. The affidavit supporting the motion to set aside the default was made by P. O. Cassidy, who was attorney for defendant, and alleges that he had full and sole charge of the suit; that he filed the answer in due time; that no reply had ever been filed by plaintiff thereto; that the trial of the cause had been regularly set by the court for April 17, 1911; that he had been in court on the morning of April 17, 1911, and was informed by the court that the assignment was behind and that the cause would not likely be reached before the last of the week; the said attorney was in court on the morning of the 18th of April and was again informed that the assignment was still behind; that he went again on the 19th and was informed by some attorney who was then trying a case that the trial then before the court would take most of the day; and that said P. O. Cassidy caused the defendant Crossan to go to the courtroom about 3 o'clock p. m. on the 19th to ascertain the probability of the cause coming to trial on that day; and that said Crossan returned and reported that judgment by default had just been taken. A copy of the motion to set aside the default, together with the affidavit in support thereof, was served on plaintiff April 19, 1911, at 5 o'clock p. m. A motion for a new trial was filed in due time and alleged, among other things: (1) That the court erred in adjudging the defendant in default, his answer being on file. (2) Defendant and his counsel were absent from the courtroom, at the time the judgment was taken, by accident and excusable neglect. (3) Irregularities in the proceedings of the court by which defendant was prevented from having a fair trial: (a) Adjudging defendant in default when he had an answer on file which pleaded an affirmative defense; no reply having been filed thereto. (b) The petition is fatally defective and will not support a judgment; it shows on its face the cause was barred by the statute of limitations. (c) Judgment is not supported or proved by competent evidence. (d) Defendant had a valid and legal defense stated in his answer, which was not controverted by plaintiff. (e) The cause could not be tried without a jury; the same not being waived by defendant. (4) The judgment is not supported by competent evidence. (5) The judgment is contrary to law.

This motion, as well as a motion for new trial, was, after due consideration by the court, overruled, and the defendant brings this cause to reverse said order. At the threshold, we are met with a motion to strike the case-made and brief from the files of this court and to dismiss the appeal, there being many reasons assigned for such action, the first being that the said case-made was not made and served in the time provided by law. In support of this reason, it is urged that the defendant was not given 60 days in which to make and serve the case-made, but that the language of the court found on page 26 of the case-made is that...