Gulf, C. & S. F. Ry. Co. v. Kellum, 35618
| Citation | 261 P.2d 610 |
| Decision Date | 06 October 1953 |
| Docket Number | No. 35618,35618 |
| Parties | GULF, C. & S. F. RY. CO. v. KELLUM. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
Where, in a civil action, answer day is fixed on the 23rd day after suit filed, and default judgment is entered four days after answer day and nine days later motion to vacate was filed with tender of meritorious answer, the ruling thereon should be based upon judicial discretion in the interest of substantial justice, and when all of the circumstances demonstrate that the motion to vacate could well be granted without serious injustice, and that the denial of motion to vacate results in serious injustice, and constitutes an abuse of judicial discretion, this court on proper and timely appeal will reverse.
Rainey, Flynn, Green & Anderson, Oklahoma City, for plaintiff in error.
Harold Springer, Ardmore, for defendant in error.
Herein it was shown that the defendant, after summons, acted with some diligence, and in full purpose to contest the plaintiff's claim, but became in default in the action solely at the fault and neglect of the defendant's attorneys and/or their employees, though in view of the organization of the work of representation of defendant in the firm of attorneys there are extenuating or excusing circumstances in this case; and, that, with promptness after the entry of the default judgment, the defendant filed motion to vacate the judgment, and therewith tendered an answer stating a defense to the plaintiff's action. The motion and answer were filed in such time that had the motion been sustained, the plaintiff would have suffered no serious injustice, and no more loss of time in his right to a speedy trial and determination of his claim than if the answer had been filed within the time fixed in the summons. All of the circumstances demonstrate to the satisfaction of this court that the denial of the motion to vacate the default judgment results in a serious injustice to the defendant, which could have been avoided and which should have been avoided by granting the motion to vacate, upon the application of sound judicial discretion.
For the purpose of administering justice the district courts of this state have a wide and extended discretion in modifying, vacating, or setting aside judgments during the term at which they are rendered. The exercise of that discretion is subject to review and correction by the Supreme Court. Halliburton v. Illinois Life Ins. Co., 170 Okl....
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Hamburger v. Fry
...apply herein the principles applied in Latson v. Eaton, Okl., 311 P.2d 231; Boehs v. Manning, Okl., 308 P.2d 288; and Gulf, C. & S. F. Ry. Co. v. Kellum, Okl., 261 P.2d 610. Initially, neither side appears to have recognized, and only in their final arguments have defendants pointed out, th......
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Boehs v. Manning
...v. Kerr, 165 Okl. 16, 24 P.2d 985; State ex rel. Higgs v. Muskogee Iron Works, Inc., 187 Okl. 419, 103 P.2d 101. In Gulf, C. & S. F. Ry. Co. v. Kellum, Okl., 261 P.2d 610, we "Where, in a civil action, answer day is fixed on the 23rd day after suit filed, and default judgment is entered fou......
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Cowden v. Little Rock Road Machinery Co., 35285
...herein, we find that it was an abuse of discretion to refuse to vacate the default judgment. See Gulf, Colorado and Santa Fe Ry. Co. v. Kellum, Okl.Sup., 261 P.2d 610. The judgment overruling the defendant's motion to vacate the default judgment is reversed, and the trial court is directed ......
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Cox v. Williams, 36300
...v. Kerr, 165 Okl. 16, 24 P.2d 985; State ex rel. Higgs v. Muskogee Iron Works, Inc., 187 Okl. 419, 103 P.2d 101. In Gulf, C. & S. F. Ry. Co. v. Kellum, Okl., 261 P.2d 610, we 'Where, in a civil action, answer day is fixed on the 23rd day after suit filed, and default judgment is entered fou......