Hogan v. Bailey

• Decision Date: 12 July 1910
• Citation: 110 P. 890,27 Okla. 15,1910 OK 222
• Parties: HOGAN et al. v. BAILEY.
• Court: Oklahoma Supreme Court

110 P. 890

27 Okla. 15, 1910 OK 222

HOGAN et al. v. BAILEY.

Supreme Court of Oklahoma

July 12, 1910

Syllabus by the Court.

For the purpose of administering justice, the district court has a very wide and extended discretion in opening judgments, and in setting aside or modifying proceedings had before it, if it does so at the same term at which the judgment or proceedings are had, and if all the parties are present in the court and no advantage is taken of either party.

In a case where a motion for new trial is filed and six months thereafter is acted on without notice, and during the same term of court a motion to set aside and vacate the order made is sustained by the court, and the motion for new trial is again passed on and time within which to make and serve a case-made is granted, a case-made duly served within the time so allowed will not be dismissed in this court on the grounds that the court was without jurisdiction.

Where the sufficiency of a petition is challenged solely by an objection to the introduction of evidence thereunder, such objection, not being favored by the courts, should generally be overruled, unless there is a total failure to allege some matter essential to the relief sought, and should seldom, if ever, be sustained when the allegations are simply incomplete, indefinite, or conclusions of law.

This court will not reverse the ruling of the trial court granting a new trial unless it can be seen beyond all reasonable doubt that the trial court has manifestly and materially erred with respect to some pure, simple, and unmixed question of law and that except for such error the ruling of the trial court would not have been so made. The Supreme Court will very seldom and very reluctantly reverse the decision or order of the trial court which grants a new trial.

Error from District Court, Oklahoma County; G. W. Clark, Judge.

Action by Thomas J. Bailey against Daniel W. Hogan and others. From an order granting plaintiff's motion for a new trial defendants bring error. Affirmed and remanded.

Caldwell & Garnett, for plaintiffs in error.

Thorp & Thorp, for defendant in error.

DUNN C.J.

This case presents error from the district court of Oklahoma county. A motion to dismiss has been interposed on the ground that the case-made was not served within a time properly allowable by the court. The facts upon which the same is predicated are as follows: The verdict was returned March 11 1909. March 13, 1909, motion for new trial was filed. September 10, 1909, motion was granted. September 13, 1909 defendant was given 90 days to make and serve a case-made. September 22, 1909, defendant appeared and filed a motion to vacate the order granting new trial and to vacate and set aside the entry and order made thereon, and as grounds therefor showed to the court that neither defendants nor their counsel had any notice or knowledge that plaintiff's motion for new trial would be heard or considered by the court, or was set for hearing on September 10, 1909, and that by reason thereof they were not present in court when said motion was presented, and had no opportunity to be heard in opposition thereto or to reserve exceptions or to take any, other steps to protect their rights in the matter. That at the time the case was set for hearing by the court, written notice was mailed to counsel for defendants, but that the same was never delivered to them nor their counsel, having miscarried, and was, after the action taken, returned to the writer. September 25, 1909, and during the same term of court, the said motion was taken up, considered by the court, and its previous order granting a new trial vacated. Thereafter, and on October 9, 1909, the court, again considering the motion for new trial, granted the same, and counsel for defendants were given 90 days within which to make and serve a case-made. Within the time so allowed, and on December 28, 1909, the case-made was duly served. It is insisted on the part of counsel for movant that, the court having once acted on the motion for a new trial, its power over the case and the order thus made was final and conclusive, and that the ruling made on the motion filed to vacate and set aside such order was error. The rule obtaining in all courts of general jurisdiction except where restricted by some statute is that during the whole term at which a judgment or order is rendered it remains subject to the plenary control of the court, and where the administration of justice will be conserved thereby it may be vacated and set aside, modified, or annulled. This power over the judgments and orders of such a court is not dependent upon any statute, but is inherent in the court itself. See 23 Cyc. 901, 902, and cases cited. This general rule is stated by the Supreme Court of Kansas in the case of State ex rel. v. Sowders et al., 42 Kan. 312, 22 P. 425, as follows: "For the purpose of administering justice, the district court has a very wide and extended discretion in opening up judgments, and in setting aside or modifying proceedings had before it, if it does so at the same term at which the judgment or proceedings are had, and if all the parties are present in the court and no advantage is taken of either party."

In this case, as will be noted, the motion for new trial had been filed and had been pending for a period of six months. The court manifestly recognized that counsel were entitled to notice of the time when the same would be set and called for consideration, and in keeping therewith sent a written notice, which was miscarried, and it was the exercise of a sound and proper discretion when counsel, by reason of the miscarriage of the notice and being uninformed, were given an opportunity to be present and heard on the motion. Counsel's absence at the time the motion was first considered and passed on was due to a lack of notice through miscarriage of mails, and this court held, in the case of C., R.I. & P. Ry. Co. v. Eastham et al. (a case recently decided, but not yet officially reported) 110 P. 887, that the miscarriage in the mail of a pleading in a case is an accident sufficient to justify the reversal of a judgment. So that in the case at bar, independent of the inherent power above referred to, the showing made by counsel was sufficient to invoke the discretion of the court, and in our judgment its action was entirely justified.

Counsel for plaintiff in error as defendant filed a demurrer to the amended petition, which was abandoned and dismissed by the court for want of prosecution. Thereafter objection was made to the introduction of evidence for the reason that the petition failed to state facts sufficient to constitute a cause of action. This objection was overruled and is assigned as one of the errors in this court. "Such an objection made at such a time and in such a manner is never favored by the courts." Mitchell et al. v. Milhoan, 11 Kan. 617; Barkley et al. v. State, 15 Kan. 99. When objection on is first taken to a petition by an objection to the introduction of evidence, the same "should generally be overruled, unless there is a...