Latson v. Eaton

• Decision Date: 07 May 1957
• Docket Number: No. 37647,37647
• Citation: 1957 OK 105,311 P.2d 231
• Parties: James LATSON, Plaintiff in Error, v. Ernest EATON and Eula Mae Eaton, Husband and Wife, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 231

311 P.2d 231

1957 OK 105

James LATSON, Plaintiff in Error, v. Ernest EATON and Eula Mae Eaton, Husband and Wife Defendants in Error.

No. 37647.

Supreme Court of Oklahoma.

May 7, 1957.

Syllabus by the Court

Where a motion to vacate a default judgment is seasonably filed within the same term in which said judgment was entered, and it appears that movant personally received no notice of the pendency of the action, and there is a reasonable showing that this was the result of 'unavoidable casualty or misfortune', and, in so far as appears, no right of a stranger to the action is involved, and the motion could well be granted without substantial delay or injustice and its denial may work a serious injustice, such denial constitutes an abuse of discretion and will be reversed on appeal.

Appeal from the Superior Court of Comanche County; Robert S. Landers, Judge.

Proceedings on a motion by the defendant in an action, to vacate a default judgment theretofore rendered against him on substituted service. From an order and judgment overruling said motion, he appeals. Reversed and remanded.

John W. Tyree, Lawton, for plaintiff in error.

Godlove & Cummins, Lawton, for defendants in error.

BLACKBIRD, Justice.

On May 3, 1956, defendants in error, husband and wife, obtained, as plaintiffs, a default judgment in the total sum of $36,900, against plaintiff in error, as defendant, in Comanche County Superior Court's Cause No. S-1072. In the judgment's journal entry filed on May 8th, thereafter, it was recited that: 'The court first examined the summons in said action and finds that the defendant, James Latson, was personally served with summons * * *'. On the 6th day thereafter, or May 11th, the named defendant, Latson, hereinafter referred to as movant, filed in said cause his motion to vacate said judgment, alleging, among other things, that he was not personally served with summons in the case, and that he had a meritorious defense thereto, as shown by an answer he attached to said motion and requested permission to file in said cause. When the motion was heard by the same judge who had entered the default judgment, defendants in error, the original plaintiffs, then judgment creditors, and hereinafter referred to as respondents, appeared in opposition to the motion. At said hearing, the controversial summons, together with the sheriff's return thereon, containing the representation that a copy thereof had been delivered to the defendant personally, was introduced in evidence. Over the objection of the respondents, the deputy sheriff who signed it, as the officer who had served the summons, was permitted to testify, in substance, that on March 24th, he had not, as the return stated, left any copy of the summons with the movant himself, but instead, had left it with his wife at their residence in Lawton (Comanche County) after being told by her, in substance, that the movant was temporarily away from home, but that she was expecting him to return soon, and, when he did, she would give it to him. The movant testified in his own behalf, without objection, that on said date he was at Velma, Oklahoma, instead of being in Comanche County, and that he did not return to the latter county until between 11:00 o'clock P. M., and midnight. He further testified, in substance, that he knew nothing of the pendency of said Cause No. S-1072, supra, until he read about it in a Lawton newspaper. Upon being asked when this was, with reference to May 3rd (the date of the judgment) movant testified: 'I would guess about the 6th; maybe the 7th.' Movant further testified that on the day the summons was served, his wife, who a short time before had given birth to a baby, was engaged in a job of accounting, typing and filing. He also offered to prove by his wife that the copy of the summons was given her by the deputy sheriff at about 4:30 P. M.; that she had never seen a summons before; that she was then engaged in making out income tax returns and that the summons' copy 'became mixed with the other papers in her home and that she never thought to give it to her husband.' At the close of the evidence, the trial court orally announced, from the Bench, his decision overruling the motion to vacate the judgment, after concluding that, on the basis of a decision by the Court of Appeals of Indian Territory in the early case of Kennedy v. Harris, 1900, 3 Ind.T. 487, 58 S.W. 567, where substituted service is accomplished on a defendant by leaving a copy of the summons with his wife, the wife's failure to notify the defendant of the service 'is not ground for setting aside a judgment obtained by reason of such service. After the movant had filed a motion for a new trial and it had been overruled, he lodged the present appeal.

Herein, he contends, among other things that the trial court abused its discretion in overruling his motion to vacate the default judgment previously entered against him in Cause No. S-1072, supra, citing cases showing, among other things, that default judgments are not favored in the law, whose policy it is, to have court actions tried on their merits. Respondents counter with the argument that the deputy sheriff's testimony was incompetent to impeach his own return on the summons; that without such inadmissible testimony the only evidence to show that movant had no notice, or knowledge, of Cause No. S-1072, supra, until after judgment had been entered therein, was his own uncorroborated testimony, which was insufficient to overcome the showing to the contrary. In the alternative, respondents...