Midkiff v. Luckey

• Decision Date: 15 March 1966
• Docket Number: No. 41065,41065
• 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.
• Court: Oklahoma Supreme Court

Page 175

412 P.2d 175

1966 OK 49

Jack Donald MIDKIFF, Plaintiff in Error, v. Frank Joseph LUCKEY and Yellow Cab Company of Oklahoma, Incorporated, a corporation, Defendant in Error.

No. 41065.

Supreme Court of Oklahoma.

March 15, 1966.

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.

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 the default judgment which has been filed after the term at which the judgment is rendered is addressed to the sound legal discretion of the trial court, and each case to a marked degree must depend upon its own facts and circumstances. In such case the granting or refusal to grant relief is largely a matter of discretion on the part of the trial court, which discretion seldom will be interfered with on appeal, but that discretion should always be exercised to promote the ends of justice."

And, in the same case:

'The uniform rule that has been followed by this court is that a petition to vacate a judgment is addressed to the sound legal discretion of the trial court, and his decision either vacating or refusing to vacate a judgment will not be disturbed unless abuse of such discretion clearly appears, and in order to warrant a reversal of an order vacating a judgment a much stronger showing of abuse of discretion must be made than where a vacation of judgment is denied.'

Again, in Haskell v. Cutler, 188 Okl. 239, 108 P.2d 146, the court said:

'It is the policy of the law to afford every party to an action a fair opportunity to present his side of a cause. First National Bank v. Kerr, 165 Okl. 16, 24 P.2d 985; Carter v. Grimmett, 89 Okl. 37, 213 P. 732; Lane v. O'Brien, 173 Okl. 475, 49 P.2d 171; Halliburton v. Illinois Life Ins. Co., 170 Okl. 360, 40 P.2d 1086; Shuler v. Viger, 103 Okl. 129, 229 P. 280. Therefore the approach to a consideration of the vacating of a default judgment must necessarily differ from the vacation of a judgment where the parties have had at least one opportunity to present the case on...