Joe Walsh Advertising, Inc. v. Phillips Tire & Supply Co.

• Decision Date: 06 June 1972
• Docket Number: No. 43182,43182
• Citation: 1972 OK 90,498 P.2d 1391
• Parties: JOE WALSH ADVERTISING, INC., a Texas Corporation, Appellee, v. PHILLIPS TIRE AND SUPPLY COMPANY, a Corporation, Appellant.
• Court: Oklahoma Supreme Court

Page 1391

498 P.2d 1391

JOE WALSH ADVERTISING, INC., a Texas Corporation, Appellee, v. PHILLIPS TIRE AND SUPPLY COMPANY, a Corporation, Appellant.

No. 43182.

Supreme Court of Oklahoma.

June 6, 1972.

Rehearing Denied July 11, 1972.

Kerr, Davis, Irvine, Burbage & Foster, by Francis S. Irvine and Larry D. Patton, Oklahoma City, for appellee.

Charles A. Whitebook, H. Richard Raskin, Whitebook & Raskin, Tulsa, for appellant.

BARNES, Justice.

This appeal involves proceedings to vacate a default judgment Appellee (hereinafter referred to as 'Walsh') obtained against Appellant (hereinafter referred to as 'Phillips') in Oklahoma County Common Pleas Court's Cause No. 44584.

The petition Walsh filed, as plaintiff in that action, alleged, among other things in brief substance, that Phillips, the defendant therein, had engaged plaintiff as its advertising agent in December, 1964, 'and agreed to pay for television advertising and agency production costs.' The petition further alleged that, pursuant to said agreement, Walsh incurred television media costs totaling $7,272.00 at a certain television station in Oklahoma City and another named station in Tulsa, plus production costs of $231.11. Attached to Walsh's petition was a verified, itemized account of these charges totaling $7,503.11, alleged to be due since July 1, 1965. In the petition, Walsh sought recovery of said sum, plus interest, attorney's fees, and court costs.

After entry of Walsh's default judgment in June, 1966, for the principal amount Walsh prayed for, plus a few hundred dollars in costs, interest, and attorney's fees, an associate of the law firm representing Phillips in said Cause No. 44584 filed a motion on its behalf in October, 1966, to vacate and set aside said default judgment. This motion, though not filed until more than three months after the end of the court term at which the default judgment had been entered, contained all of the averments prescribed by 12 O.S.1961, § 1033, for a petition to vacate a judgment on the grounds specified in Section 1031, subd. 7, of the same Title. No summons was issued in connection with the petition's filing, but Walsh's counsel appeared in its behalf against the motion at the hearing thereon, without objecting that his client had not been summoned, nor claiming that its appearance at the hearing was only a special one. After arguments pro and con of the matter, the trial court held, among other things, that there was no cause for vacating the judgment under Section 1031, subd. 7, and overruled Phillips' motion before tne end of the same month (October, 1966).

Phillips then attemped to appeal to this Court from said ruling, but did not file its petition in error here until the ninety-first day after the trial court had entered its order overruling the motion to vacate. After Walsh filed a motion to dismiss on that ground, Phillips also moved to dismiss its said appeal on the theory that the trial court lacked jurisdiction, after the term in which the default judgment was rendered, to act on its motion to vacate same. This Court thereafter dismissed said appeal.

In the meantime, Phillips had instituted new judgment vacation proceedings in the trial court by filing a petition to vacate the default judgment in Cause No. 44584, supra. Walsh then filed in said cause a motion to dismiss this petition, and, after a hearing thereon, the court entered a judgment sustaining it upon finding that the issues joined by the petition to vacate the default judgment, and the motion to dismiss it, had been determined by its previous order overruling Phillips' motion to vacate. Phillips then filed a motion for new trial, and, after it was overruled, lodged the present appeal.

Under the fourth Proposition it advances for reversing the trial court's judgment, Phillips takes the position that said court's order of October, 1966, overruling its motion to vacate the default judgment could not have been res adjudicata of the issues joined by its petition to vacate said judgment, and the motion to dismiss it, for the reason that the motion to vacate was not in compliance with Section 1033, supra, and that, therefore, the order overruling it was void and a nullity. We have held that substantial compliance with this statute is sufficient (Allen v. Allen, 201 Okl. 442, 209 P.2d 172) and, as hereinbefore noted, Phillips' motion (except for its title, which is not controlling) substantially complied with said statute. Since, as we have also already noted, Walsh's counsel appeared at the trial court's hearing on said motion and made no objection to it on that ground, Phillips will not now be heard to urge this as justification for considering null and void the court's overruling of said motion. This would enable Phillips to take advantage of an allegedly erroneous court ruling that was invited. In this connection, notice the discussion in Aronson v. Aronson, Okl., 468 P.2d 493, 497, 498, and Taliaferro v. Reirdon, 186 Okl. 607, 99 P.2d 500 (2nd syll.). Furthermore, there is no material difference in the situation here and the one concerning which this Court in Hale v. McIntosh, 116 Okl. 40, 243 P. 157, 159, said:

'It is urged in the brief of counsel for defendants and also in the oral argument that the court did not have any jurisdiction to vacate the judgment after the term in which said judgment was rendered had been adjourned on a motion, and that the plaintiffs, under the statute, should have filed a verified petition and had a summons issued and served as in other cases. We are of the opinion, after a careful examination of the pleading filed by plaintiffs, denominated a motion, that It is sufficient as a petition, and no doubt was considered by the trial court and will be considered here as a petition, as It contains all of the necessary averments of a petition, and upon examination of the record the court...