Lindsey v. Goodman

• Decision Date: 25 April 1916
• Docket Number: 6091.
• Citation: 157 P. 344,57 Okla. 408,1916 OK 487
• Parties: LINDSEY ET AL. v. GOODMAN.
• Court: Oklahoma Supreme Court

157 P. 344

57 Okla. 408, 1916 OK 487

LINDSEY ET AL. v. GOODMAN.

No. 6091.

Supreme Court of Oklahoma

April 25, 1916

Syllabus by the Court.

A general denial contained in a proffered answer attached as an exhibit to a motion to set aside a judgment is not sufficient to warrant a vacation of the judgment.

When fraud practiced by the successful party is alleged, the facts showing such fraud must be stated or set forth in a plain and concise manner, as in other cases. Mere knowledge of certain facts is not sufficient; the fraudulent acts and proceedings of such party, designed and practiced for the purpose of securing an unfair or unjust judgment, must be clearly shown.

When "unavoidable casualty or misfortune" is alleged the facts must be so stated as to make it appear that no reasonable or proper diligence or care could have prevented the trial or judgment; that is, that the party complaining is not himself guilty of any laches.

The negligence of the party is no ground for a new trial. The provision of the Code is: "Accident or surprise which ordinary prudence could not have guarded against." And the negligence of the attorney is the negligence of the party, within the meaning of the subdivision. The attorney is the agent of the party for the purposes of the trial, and the party cannot make his attorney's negligence a ground for relief.

It is the general rule that neither ignorance, mistake, nor the misapprehension of an attorney, not occasioned by the adverse party, is any ground for vacating a judgment or granting a new trial. Neither will relief be ordinarily granted by the way of a new trial on the ground that the attorney, through design, ignorance, or negligence, mismanaged the defense. The negligence of the attorney is the negligence of the party.

While courts do frequently, and we may say do ordinarily, have counsel notified or called when a case is reached for trial this is done as a courtesy and not as a duty, and it is no abuse of discretion for a trial court to call a case which stands on the day's calendar for trial and proceed with the trial, even though the defendant or his counsel is absent, where no request is made to postpone the cause and no permission to be absent has been given by the court.

It is for the interest of the public, as well as of the parties that there be a speedy end of any litigation. After trial and verdict, motion for a new trial, and judgment, the proceedings should not be disturbed, and the litigation reopened, except upon a clear showing that the rights of the defeated party have been lost by unavoidable casualty or misfortune.

No party to a civil action shall be allowed to testify in his own behalf, in respect to any transaction or communication had personally by such party with a deceased person, when the adverse party is the executor, administrator, heir at law next of kin, surviving partner, or assignee of such deceased person, where such party has acquired title to the cause of action immediately from such deceased person. Section 5049, Rev. Laws 1910.

Commissioners' Opinion, Division No. 4. Error from Superior Court, Tulsa County; M. A. Breckinridge, Judge.

Action by Elizabeth Goodman, administratrix of the estate of Charles D. Goodman, against L. W. Lindsey and another. Judgment for plaintiff, and defendants bring error. Affirmed.

See, also, 154 P. 275.

Chas. L. Fildes, of Tulsa, for plaintiffs in error.

Jno. Y. Murry, Jr., of Tulsa, for defendant in error.

DAVIS C.

The parties herein will be designated as in the trial court, plaintiffs in error will be mentioned as defendants, and the defendant in error as plaintiff, in the body of the opinion, after the statement of facts.

This suit was instituted in the superior court of Tulsa county, Okl., on the 23d day of May, 1912, by defendant in error against plaintiffs in error, to recover on two plain promissory notes. On June 19, 1912, plaintiffs in error filed in said cause a motion to make one count of the petition more definite and certain and a general demurrer to the other count. On January 18, 1913, both said motion and demurrer were by the court overruled, and plaintiffs in error were required to answer the petition within 10 days from this date, or on or before January 29, 1913. On February 11, 1913, neither of plaintiffs in error having answered, defendant in error demanded and obtained a judgment by default against each of them on each of said counts. On the same day, on motion of attorneys for plaintiffs in error, said judgment was vacated and set aside, and plaintiffs in error granted 10 days thereafter, or until February 21, 1913, within which to answer. On May 24, 1913, on motion of defendant in error, a judgment by default (being the second judgment by default) was, by the trial court, rendered against plaintiffs in error in favor of defendant in error, being in the sum of $1,512.22, with interest and costs and duly entered of record. On November 13, 1913, plaintiffs in error filed in said court and cause a motion to set aside and vacate said (second) judgment last mentioned, and to be permitted to defend in said action and to file their answer. On December 16, 1913, a demurrer theretofore interposed by defendant in error to said petition to vacate having been sustained, plaintiffs in error were allowed by the court to amend their said petition, the same being filed on the 22d day of December, 1913, said amendment being by way of substitution for section 3 of said original petition to vacate a redrafted section bearing the same number. On January 24, 1914, a demurrer theretofore interposed by defendant in error to said petition as amended was by the court sustained; said demurrer being in words and figures as follows:

"Comes now the plaintiff by attorney and demurs to the amended petition of defendants to vacate the judgment heretofore rendered in said cause, filed on the 22d day of December, 1913, for the reason that said petition, as amended, does not state facts sufficient to constitute a cause of action and relief in favor of said petitioners and against the plaintiff herein.

Jno. Y. Murry, Jr., Attorney for Plaintiff."

The only error assigned in the petition in error in this cause is as follows:

"That the court erred in sustaining the said demurrer of the defendant in error to the petition (as amended) of plaintiffs in error, wherein they prayed for an order setting aside and vacating the judgment theretofore rendered in said cause, with leave to defend therein and to file their answer then and there exhibited to the court as part of their said petition."

The grounds to set aside and vacate the second judgment by default against the defendants are contained in the petition to vacate, and in the amendment thereto, and in the proffered answer attached thereto and marked "Exhibit B," said petition to vacate, and the amendment thereto, reads as follows:

"Come now the defendants in the above-stated cause and represent and show to the court the following facts:

(1) That on the 24th day of May, 1913, the said plaintiff obtained a judgment against the said defendants in the aforesaid action in the sum of $1,512.22 and costs, as will more fully appear by reference to a copy of said judgment, marked Exhibit A and hereto attached as part hereof.

(2) That the said judgment was obtained by fraud of the successful party, plaintiff herein, by reason of the following matter, to wit: That the said party plaintiff was the wife of the said decedent, Charles D. Goodman, and she was advised of the fact that the debt, as evidenced by the two several notes mentioned in said Exhibit A, had been satisfied and discharged during the lifetime of the said Charles D. Goodman, and that although regular on their face, the said notes were in truth and in fact void.

(3) That the recovery of said judgment was made possible because of unavoidable casualty or misfortune, preventing the defendants from defending said cause, to wit: That the defense of said cause was assumed by said L. W. Lindsey, that he employed counsel to represent said defendants herein, and that during the progress of said cause he was absent from the city of Tulsa, and that his counsel wrote him concerning the necessity for his presence at court, as he has been advised and informed, since the rendition of said judgment, but the letter did not reach him, due to one of two circumstances--either the letter was lost in the mail or was erroneously delivered to one T. W. Lindsey, who received his mail at the same post office as L. W. Lindsey.

(4) That defendants were never legally notified of the time and place of taking such judgment.

(5) Said defendants further state that they have a good and

valid defense to the petition of the plaintiff herein, as more fully set out in the answer hereto attached, marked Exhibit B and made a part of this petition.

Wherefore said defendants pray this honorable court to set aside and vacate the judgment heretofore rendered in this cause, and to permit said defendants to defend in this action, and that their answer hereto attached as Exhibit B be filed herein as his answer to the petition of plaintiff.

Chas. L. Fildes, Attorney for Defendants."

That thereafter, to wit, on December 16, 1913, plaintiff's demurrer to said petition to vacate said judgment, theretofore filed, coming on to be heard was sustained, and defendant was allowed 10 days to amend said petition to vacate.

That thereafter, to wit, on December 22, 1913, defendants, by leave of court, filed an amendment to their said petition, which is in words and figures as follows:

"Come now the defendants, by leave of court, and amend their petition in said cause by striking therefrom paragraph No. 3, and inserting in lieu thereof the following, to wit:

(3)

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