Harn v. Boyd
| Decision Date | 22 January 1918 |
| Docket Number | 7663. |
| Citation | 170 P. 505,69 Okla. 156,1918 OK 36 |
| Parties | HARN v. BOYD. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Feb. 12, 1918.
Syllabus by the Court.
The judgments, decrees, or other orders of the court, however conclusive in their character, are under the control of the court which pronounces them during the term at which they were rendered or entered of record, and may then be set aside, vacated, or modified by the court.
The setting aside and vacating of orders rests in the sound legal discretion of the trial court, and unless it affirmatively appears that the court abused its discretion in vacating a judgment or order of default, its decision will not be disturbed on appeal. Hence, in the absence of any showing of abuse of its discretion, the court's order setting aside a default judgment and allowing the party against whom such order was entered to plead out of time will not be disturbed on appeal.
Where the defendant attaches to his answer and cross-petition a verified account, which on its face shows that it is a joint liability against the plaintiff and a third party who is not a party to the action, and the defendant alleges in his answer and cross-petition that such account is a joint liability against the plaintiff and such third party, and further alleges that the third party is the agent of the plaintiff, and the correctness of such account is denied by the affidavit of the third person in the reply of the plaintiff, it is not error for the trial court to refuse to strike the reply of the plaintiff for want of proper verification or to refuse to render judgment upon the pleadings.
Additional Syllabus by Editorial Staff.
In order for the Supreme Court to review the trial court's exclusion of evidence, the record must show what the offered evidence would have been if it had been admitted.
Commissioners' Opinion, Division No. 3. Error from District Court, Oklahoma County; John W. Hayson, Judge.
Action by Martha E. Boyd against William F. Harn. Judgment for plaintiff, and defendant brings error. Affirmed.
W. F Harn and Choate & Choate, all of Oklahoma City, for plaintiff in error.
Shirk & Danner, of Oklahoma City, for defendant in error.
This action was commenced on the 4th day of June, 1914, in the district court of Oklahoma county by Martha E. Boyd, defendant in error, against W. F. Harn, plaintiff in error, for the recovery of rents collected by the plaintiff in error as agent of the defendant in error. The parties will be referred to as they appeared in the trial court.
The petition of the plaintiff alleges that she is the owner of certain lots in Oklahoma City, and that from July, 1910, to September, 1913, the defendant, as her agent, had collected as rents from tenants of said premises the sum of $1,900, for which the defendant had made no settlement. The plaintiff asks for judgment against the defendant for said sum, with interest at 6 per cent. per annum.
The defendant in his answer interposes a general denial of the allegations of the petition of the plaintiff, and further alleges that during the period wherein it is alleged that the defendant collected the rents claimed by the plaintiff there was a partnership agreement between the plaintiff and defendant and one W. W. Boyd, and alleges that the defendant was to purchase, hold, and sell real property in Oklahoma City, and the defendant and W. W. Boyd were to furnish the funds to carry on the real estate business, and that all three were to share the profits equally, and alleges various and numerous transactions wherein the defendant, Harn, bought and sold property at a great profit, and alleges that there was due to him by reason of these transactions $14,660. He further alleges that the property and the rents involved in this action were his property included in the partnership business, and admits that he has collected $776.80. The defendant further alleges as a counterclaim that the plaintiff and W. W. Boyd, for services rendered them as attorney in several actions, are due him the sum of $3,745, and attaches to his answer and cross-petition Exhibit A, in a form of an accounting stated as an account of Martha A. Boyd, plaintiff, and W. W. Boyd with the defendant. He also attaches as Exhibit B and the various items claimed to be due him by reason of the real estate transactions consummated by him in the form of a stated account, as an account of Martha E. Boyd, plaintiff, and W. W. Boyd with W. F. Harn, defendant, which shows a balance of $14,660 due, and asks judgment against the plaintiff in this sum. There was judgment for the plaintiff against the defendant in the amount of $776, and the defendant appeals.
The first assignment of error urged by the defendant is that the court erred in setting aside an order adjudging the plaintiff to be in default for want of a reply to the answer and cross-petition of the defendant.
On the 30th day of November, 1914, the trial court adjudged the plaintiff in default on account of her failure to file a reply to the answer and cross-petition of the defendant, and left the case standing on the docket for a hearing on the answer and cross-petition of the defendant.
On the 2d day of December, 1914, the cause was called for hearing and on that date the trial court, on motion of the plaintiff's attorney to vacate the order of default, made an order vacating said order of default, and allowed the plaintiff to file a reply to the answer and cross-petitio...
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