Girkin v. Cook, s. 45353

• Decision Date: 09 October 1973
• Docket Number: Nos. 45353,45521,s. 45353
• Citation: 518 P.2d 45,78 A.L.R.3d 142
• Parties: Maudie GIRKIN, Appellee, v. Peggy COOK, Appellant. Maudie GIRKIN, Appellee, v. ALLSTATE INSURANCE COMPANY, Garnishee, Appellant.
• Court: Oklahoma Supreme Court

Page 45

518 P.2d 45

78 A.L.R.3d 142

Maudie GIRKIN, Appellee, v. Peggy COOK, Appellant.

Maudie GIRKIN, Appellee, v. ALLSTATE INSURANCE COMPANY, Garnishee, Appellant.

Nos. 45353, 45521.

Supreme Court of Oklahoma.

Oct. 9, 1973.

Rehearing Denied Jan. 22, 1974.

Sanders, McElroy & Carpenter, Tulsa, for appellee.

Covington, Gibbon & Poe, Tulsa, for appellant.

BARNES, Justice:

In this appeal from the trial court's ruling rejecting the appellant's efforts to have a default judgment against her vacated or set aside, the Court of Appeals affirmed said ruling. Being of the opinion that both of those courts erred, we have herein determined to grant certiorari.

Appellee and appellant will hereinafter be referred to as 'plaintiff' and 'defendant', respectively, as they appeared in the trial court.

Plaintiff's alleged cause of action against defendant arose out of an automobile collision near a street intersection in Tulsa. The brief substance of plaintiff's petition was that on a January morning, while she was driving her 1969 model Buick automobile south on an inside lane of said City's icy South Lewis Avenue, and indicating, by her auto's directional signal as she neared South Lewis' intersection with 34th Street, that she was going to turn left off of Lewis onto 34th Street, the defendant's negligence in driving her 1954 model Buick auto into the rear of plaintiff's auto caused damages to the latter in the sum of $210.97 and personal injuries to plaintiff. In the petition, plaintiff prayed for a total of $26,456.47 in damages for the injuries to herself and the auto.

Long after defendant's answer date, in February, 1971, plaintiff's Tulsa attorney, S., appeared with his client before one of Tulsa County's District Judges on the afternoon of June 3, 1971, and obtained a default judgment against defendant in the total sum of $26,000.00. Previously, Tulsa attorney, G., had been employed to represent defendant in the action, but, because the case was not properly entered on his law firm's office registry, it did not come to his attention until the morning of June 3, 1971, that defendant's answer date had passed. The next day, June 4th, attorney G. filed an answer for defendant, with permission to file it 'out of time' endorsed on it by a Tulsa County District Judge other than the one who had, the day before, granted plaintiff the default judgment.

In said answer, the allegations of defendant's negligence set forth in plaintiff's petition were denied, and it was alleged that the auto collision was proximately caused, or contributed to, by the negligence of plaintiff in certain particulars.

Attorney G.'s 'certificate' on the answer he filed for defendant recited that a true and correct copy of said pleading had been mailed to attorney S.'s law firm. Undaunted by receipt of a copy of this answer, attorney S. thereafter on June 9th filed a Journal Entry of the default judgment (he had previously obtained for plaintiff on June 3rd). Upon being apprised by a telephone call from Mr. G.'s office, on June 11th, of defendant's desire to take plaintiff's deposition on a date in the latter part of June, attorney S. agreed that the deposition be taken, but stated that he could not participate before July 12th. After the latter date was agreed upon for the taking of the deposition, attorney S. mailed attorney G.'s office a copy of a letter dated June 12th he supposedly wrote plaintiff advising her of said arrangement.

Thereafter, in early July, attorney G.'s office received a telephone call from one of attorney S.'s law office associates advising him that the taking of depositions in the case would be unnecessary since a default judgment had already been entered therein.

After attorney G. found that such a judgment had, in fact, been entered, he filed for defendant on July 9, 1971, a motion to set aside said default judgment. Later, on July 27, 1971, before any hearing had been held on said motion, attorney G. also filed a petition to set aside the judgment.

Thereafter, on November 5, 1971, at a hearing on both the motion and the petition to set aside the default judgment, the court, in a single order, overruled the motion and sustained a demurrer that plaintiff had interposed to the petition.

Thereafter, defendant lodged her present appeal from said order by filing her petition in error in this Court within the thirty days prescribed by our Rule 1.15.

In garnishment proceedings plaintiff instituted on July 9, 1971, against defendant's insurer, Allstate Insurance Company, the trial court entered an order on December 17, 1971, overruling a motion by Allstate to abate said garnishment proceedings. On the same day, the trial court also sustained a motion by plaintiff for summary judgment against Allstate, after finding that plaintiff's aforementioned default judgment had become final, in the absence of a motion for a new trial, and that said finality was unaffected by defendant's aforementioned lodging of this appeal from the court's order of November 5, 1971. The principal amount of the judgment then summarily entered against said insurance company as garnishee was $10,210.97, which said sum Allstate's answers to plaintiff's interrogatories had admitted was within the limits of the insurance policy it had issued to defendant. Said judgment also granted plaintiff recovery against Allstate of interest at 10% Per annum on the entire amount of the default judgment's principal of $26,000.00 from June 3, 1971 (the date of its entry), 'to date of payment.' The garnishee insurance company has herein appealed from said order and/or judgment.

In her portion of this appeal, defendant attacks the trial court's order overruling both her motion and her petition to set aside the dafault judgment plaintiff obtained against her on June 3, 1971. Defendant contends that said ruling constitutes an abuse of discretion, while plaintiff denies this and supports the trial court's evident view that any other ruling would have been unauthorized under our statutes.

As to the motion to set aside the default judgment, it is plaintiff's position that since it was not filed until after the thirty-day period immediately following its rendition on June 3, 1971, the court was without jurisdiction to entertain it under Title 12 O.S.1971 and 1969 Supp. § 1031.1. Both here, and in the trial court, plaintiff has taken the position that if, on the basis of the facts (a part of which were undisputed by representations made to the court by the parties' respective attorneys and a part of which were shown by affidavits filed on behalf of plaintiff and considered by the court as evidence, without objection), there were statutory grounds for vacating the default judgment, the court's jurisdiction to do this could only have been invoked after the thirty-day period prescribed by Section 1031.1, supra, on one of the grounds, and in the manner, prescribed by Title 12 O.S.1971 and 1961, § 1033. This latter section prescribes that proceedings to vacate or modify judgments or orders on the grounds of the 'fraud' described in the fourth subdivision of Title 12 O.S.1971 and 1961, § 1031, or of the 'unavoidable casualty or misfortune' described in subdivision seven of said section (and upon other grounds not material here),

'* * * shall be by petition, verified by affidavit, setting forth the judgment or order, the grounds to vacate or modify it, and the defense to the action, if the party applying was defendant. On such petition, a summons shall issue and be served as in the commencement of an action.'

The motion defendant filed in the present case to set aside the default judgment was verified by her attorney, just as was the petition she subsequently filed to set aside said judgment; and no claim is made that either of said verifications was any different from those contemplated by the above quoted statute. We think both contain all of the necessary essentials to comply with said statute and that therefore the trial court might have considered defendant's motion,...