Midkiff v. Luckey, No. 41065
| Court | Supreme Court of Oklahoma |
| Writing for the Court | PER CURIAM; The Court acknowledges the services of Forrester Brewster, who with the aid and counsel of Julian B. Fite and Joe R. Boatman, as Special Masters, prepared a preliminary advisory opinion. These attorneys had been recommended by the Oklahom |
| Citation | 412 P.2d 175 |
| Parties | Jack Donald MIDKIFF, Plaintiff in Error, v. Frank Joseph LUCKEY and Yellow Cab Company of Oklahoma, Incorporated, a corporation, Defendant in Error. |
| Decision Date | 15 March 1966 |
| Docket Number | No. 41065 |
Page 175
v.
Frank Joseph LUCKEY and Yellow Cab Company of Oklahoma,
Incorporated, a corporation, Defendant in Error.
Syllabus by the Court
Where the record contains sufficient competent evidence to authorize a finding of unavoidable casualty and misfortune preventing a party from defending, the action of the trial court in vacating a default judgment will not be disturbed.
Appeal from the District Court of Oklahoma County; A. P. Van Meter, Judge.
Page 176
Action by Jack Donald Midkiff against Frank Joseph Luckey and Yellow Cab Company of Oklahoma, Inc., to recover damages for personal injuries wherein plaintiff recovered a default judgment. After the term at which the judgment was rendered, defendant Yellow Cab Company filed petition to vacate the default judgment. From a judgment vacating and setting aside the default judgment, plaintiff appeals. Affirmed.
Wilbur R. Dean, Oklahoma City, for plaintiff in error.
Charles E. Malson, Oklahoma City, for defendant in error.
PER CURIAM.
This action was brought in the District Court of Oklahoma County by plaintiff to recover damages for personal injuries alleged to have resulted from the negligence of Frank Joseph Luckey, employee of Yellow Cab Company of Oklahoma, Inc., while driving a cab belonging to the company in Oklahoma City. Summons was served on the president of defendant company. No service of summons was obtained on defendant, Frank Joseph Luckey.
On June 25, 1963, judgment by default was rendered in favor of plaintiff and against the defendant company. Thereafter, on August 26, 1963, the defendant company filed petition to vacate the default judgment on the ground of unavoidable casualty and misfortune preventing defendant company from defending the suit.
Issues were joined by appropriate pleadings and on February 27, 1964, the trial court sustained the petition and set aside and vacated the default judgmenmt entered June 25, 1963, against defendant company. Plaintiff filed motion for new trial which was over-ruled. From the order overruling the motion for new trial, plaintiff appealed.
For reversal of the action of the trial court in sustaining the petition and setting aside the default judgment, plaintiff contends that the defendant failed to establish by sufficient evidence unavoidable casualty and misfortune, and, that the defendant's failure to defend was due to its own negligence.
In considering the sufficiency of the proof authorizing the trial court to exercise discretion in vacating this default judgment, the rules of this court in such circumstances should be kept in mind.
It is held in State Life Ins. Co. v. Liddell et al., 178 Okl. 114, 61 P.2d 1075:
'In proceedings of this character each case must depend on the facts of the particular case.
'We quote the first paragraphs of the syllabus in Standard v. Fisher, 169 Okl. 18, 35 P. (2d) 878: 'Default judgments are never viewed with favor. Litigated questions should be tried on their merits. Lovejoy v. Stutsman, 46 Okl. 122, 148 P. 175; Lott v. Kansas Osage Gas Co., 139 Okl. 6, 281 P. 297.
"An application to set aside...
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Nelson v. Nelson, No. 88764
...Wichita v. Trent, see note 53, supra; American Bank of Commerce v. Chavis, 1982 OK 66, 651 P.2d 1321, 1323; Midkiff v. Luckey, 1966 OK 79, 412 P.2d 175-76. See also, Bailey v. Campbell, see note 47, 55 Title 12 O.S. Supp.1996 § 2004 provides in pertinent part: "... B. 2. A judgment by defau......
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Branch v. Ameriresource Group, Inc., No. 93,742.
...whether to vacate. Ferguson Enterprises, Inc. v. H. Webb Enterprises, Inc., 2000 OK 78, 13 P.3d 480, citing Midkiff v. Luckey, 1966 OK 49, 412 P.2d 175; Burroughs v. Bob Martin Corp., 1975 OK 80, 536 P.2d 339; Hamburger v. Fry, 1958 OK 287, 338 P.2d 1088; Latson v. Eaton, 1957 OK 105, 311 P......
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Sit v. Engines, No. 110740.
...a judgment where the parties have had at least one opportunity to present the case on its merits.’ ” Midkiff v. Luckey, 1966 OK 49, ¶ 7, 412 P.2d 175, 177 (quoting Haskell v. Cutler, 1940 OK 485, ¶ 8, 188 Okla. 239, 108 P.2d 146, 147). The Supreme Court has emphasized that “ ‘[l]itigated qu......
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Herring v. Graham, Case No. 116,184
...is required when a trial court vacates a judgment than when it refuses to vacate a judgment. Midkiff v. Luckey , 1966 OK 49, ¶ 6, 412 P.2d 175, 176-77. "To reverse on the grounds of abuse of discretion, the appellate court must find that the trial judge made a clearly erroneous conclusion a......
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Nelson v. Nelson, No. 88764
...Wichita v. Trent, see note 53, supra; American Bank of Commerce v. Chavis, 1982 OK 66, 651 P.2d 1321, 1323; Midkiff v. Luckey, 1966 OK 79, 412 P.2d 175-76. See also, Bailey v. Campbell, see note 47, 55 Title 12 O.S. Supp.1996 § 2004 provides in pertinent part: "... B. 2. A judgment by defau......
-
Branch v. Ameriresource Group, Inc., No. 93,742.
...whether to vacate. Ferguson Enterprises, Inc. v. H. Webb Enterprises, Inc., 2000 OK 78, 13 P.3d 480, citing Midkiff v. Luckey, 1966 OK 49, 412 P.2d 175; Burroughs v. Bob Martin Corp., 1975 OK 80, 536 P.2d 339; Hamburger v. Fry, 1958 OK 287, 338 P.2d 1088; Latson v. Eaton, 1957 OK 105, 311 P......
-
Sit v. Engines, No. 110740.
...a judgment where the parties have had at least one opportunity to present the case on its merits.’ ” Midkiff v. Luckey, 1966 OK 49, ¶ 7, 412 P.2d 175, 177 (quoting Haskell v. Cutler, 1940 OK 485, ¶ 8, 188 Okla. 239, 108 P.2d 146, 147). The Supreme Court has emphasized that “ ‘[l]itigated qu......
-
Herring v. Graham, Case No. 116,184
...is required when a trial court vacates a judgment than when it refuses to vacate a judgment. Midkiff v. Luckey , 1966 OK 49, ¶ 6, 412 P.2d 175, 176-77. "To reverse on the grounds of abuse of discretion, the appellate court must find that the trial judge made a clearly erroneous conclusion a......