Grayson v. Stith
| Decision Date | 12 February 1946 |
| Docket Number | 32012. |
| Citation | 165 P.2d 984,196 Okla. 477,1946 OK 45 |
| Parties | GRAYSON et al. v. STITH. |
| Court | Oklahoma Supreme Court |
Appeal from District Court, Wagoner County; O. H. P. Brewer, Judge.
Action by P. E. Grayson and another against J. O. Stith to vacate a default judgment rendered against plaintiffs. From a judgment for defendant, plaintiffs appeal.
Reversed with directions to vacate the judgment.
See also, 192 Okl. 340, 138 P.2d 530.
Syllabus by the Court.
The act of an attorney in abandoning his client's case without notice to the latter, and in permitting a default judgment to be rendered against his client without his knowledge or consent, constitutes unavoidable casualty or misfortune under the seventh subdivision of section 556, O.S.1931, 12 O.S.1941 § 1031, subd. 7.
Fred W Martin, of Wagoner, for plaintiffs in error.
A. Camp Bonds and W. R. Banker, both of Muskogee, for defendant in error.
This action was commenced on July 31, 1934, by P. E. Grayson and Rosa Grayson as plaintiffs, against J. O. Stith as defendant seeking to vacate a default judgment theretofore rendered against them and in favor of Stith in the District Court of Wagoner County. When the matter came on for hearing the trial court sustained the defendant's motion for judgment on the pleadings and opening statement of counsel for plaintiffs, and on appeal this court in Grayson v Stith, 181 Okl. 131, 72 P.2d 820, 114 A.L.R. 276, reversed the judgment of the lower court. Thereafter the trial court set the matter for hearing, heard the evidence and at the conclusion thereof rendered judgment for the defendant and plaintiffs appeal from this second judgment.
It is admitted that the answer attached to plaintiffs' petition to vacate judgment sufficiently stated a valid defense to the petition filed in the original action.
The evidence adduced at the hearing sufficiently established the averments of movants' petition and the statements made by counsel in the opening statement, which are set forth in the opinion above referred to. It showed that after Mr. C. E Castle had withdrawn from the case and after Mr. E. L. Kirby had been employed by plaintiffs, the court overruled a demurrer theretofore filed in the cause by Castle, and that Kirby filed no further pleading in the case. The demurrer was overruled February 23, 1934, and some weeks thereafter the attorney for Stith, the plaintiff in that action, advised Kirby that he was in default and at his suggestion Kirby was given 20 additional days within which to file an answer; that thereafter he stated to the attorney for Stith that he believed it would be to the best interest of his clients to have a judgment taken against them in order to cut off certain mortgages which were against the property. On July 31, 1934, no answer or other pleading having been filed in the case Kirby, the attorney for Stith advised him that he was still in default and that he was on his way to the courthouse to take default judgment in the case. Before the default judgment was rendered the trial court called Kirby and requested him to come to the courthouse, and he did go and stated to the court that he was not able to find what in his opinion constituted any defense to the petition and that he had no defense to make. He refused to O.K. the journal entry, but stated that he was in no position to protest against the entry of the judgment against the Graysons. Thereupon the trial court rendered the default judgment which plaintiffs in this action seek to set aside. The record shows that Kirby did not advise the Graysons that he was unable to set up a good defense in the action, or that he was unable or unwilling to defend it, so that they might employ other counsel. Plaintiffs were Negroes living upon a farm some distance from the City of Wagoner, and from their testimony relied implicitly upon Kirby, and after the matter was...
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