Mo., K. & T. Ry. Co. v. Ellis

• Decision Date: 14 March 1916
• Docket Number: Case Number: 6593
• Parties: MISSOURI, K. & T. RY. CO. v. ELLIS.
• Court: Oklahoma Supreme Court

1916 OK 335

156 P. 226

53 Okla. 264

MISSOURI, K. & T. RY. CO. v. ELLIS.

Case Number: 6593

Supreme Court of Oklahoma

Decided: March 14, 1916

Syllabus

¶0 JUDGMENT--New Trial--Ground--Negligence of Corporation's Agent--Vacation of Judgment. The negligence of an agent of a defendant corporation, in misplacing a copy of the summons served upon him, and in not notifying the corporation of the service of such summons, is not "accident or surprise, which ordinary prudence could not have guarded against," within the meaning of section 5033, Rev. Laws 1910, nor is it "unavoidable casualty or misfortune, preventing the party from prosecuting or defending," within the meaning of section 5267, subd. 7, Rev. Laws 1910, so as to make it an abuse of discretion for the trial court to refuse to grant a motion to vacate a default judgment and for a new trial by reason thereof.

Error from District Court, Pawnee County; L. M. Poe, Judge.

Action by Robert Ellis against the Missouri, Kansas & Texas Railway Company. From the order of the court refusing to set aside default judgment in favor of plaintiff and to grant a new trial, defendant brings error. Affirmed.

Clifford L. Jackson, W. R. Allen, and M. D. Green, for plaintiff in error.

Hayes & Cleeton, for defendant in error.

SHARP, J.

¶1 October 31, 1913, plaintiff instituted this action against defendant to recover an alleged balance due on a contract for the construction of a depot by the former for the latter at Cleveland, Okla. Service of summons was had on defendant November 5, 1913, by delivering a copy thereof to V. A. Eikenbury, acting agent of the company at Hallett, Okla. Answer day in the summons was fixed as November 28, 1913. No answer or other pleading to the petition having been filed, on January 6, 1914, default judgment in favor of plaintiff was taken. On the same day defendant was apprised of the default judgment taken against it, though it does not appear in what manner it received the information. On January 9th thereafter defendant filed its motion to vacate the judgment and for a new trial, and subsequently filed two amended motions to vacate. To these motions to vacate and grant a new trial plaintiff filed an answer, and on February 25th a hearing was had thereon. From the evidence introduced at the hearing, it would seem that at the time Eikenbury was served with the summons in this case he inclosed it in an envelope and addressed the envelope to the superintendent of the railroad company at Oklahoma City, but that he neglected to mail it; that the summons became misplaced in the office of the station at Hallett, and was not seen again until January 28, 1914, when it was found on the telegraph table in the office at Hallett by the regular agent at that place, N. A. Wooley, although he had resumed the duties of station agent November 19, 1913. The court overruled defendant's motion to vacate the judgment and for a new trial February 26, 1914, from which order defendant brings error.

¶2 Counsel for plaintiff in error admit the negligence of the agent at Hallett, as will be seen from the following statement in their brief:

"From the evidence and the record in this case it appears that the summons was issued on October 31, 1913, and served by Deputy Sheriff Lee Watts on V. A. Eikenbury, then in charge of the railway company's station at Hallett, Okla., on November 5, 1913. Eikenbury states that on the day the summons was delivered to him he placed same in an envelope and addressed the envelope to S. H. Charles, superintendent of the railway company, at Oklahoma City, and placed it with other mail to go on the train for Oklahoma City. Further information he is unable to give. The summons not having reached Superintendent Charles, and the legal department of the railway company having had no advice of the commencement of the suit or the service of the summons, no answer or other pleading was filed on behalf of the railway company, and on January 6, 1914, the plaintiff, by his attorneys, procured judgment by default against the railway company. On January 28, 1914, a copy of the summons, and apparently the copy which was served on Eikenbury, was found on the telegraph table in the agent's office at the station of the railway company at Hallett. Neither of the two employees then on duty there knew how it reached that place. There is some evidence that the agent who found the summons on January 28, 1914, stated to other parties that he found it among some papers, or words to that effect, but the agent himself testified that he found it on the telegraph table. While the facts when taken most strongly against the railway company may be said to show negligence on the part of its agent in failing to properly handle the summons which was served on him, yet under all the circumstances it is respectfully submitted the railway company should not be required to suffer on that account and be compelled to pay out a large sum of money without first having the question of its liability tried out before a jury."

¶3 In the affidavit of Eikenbury, the acting agent, we fail to find where he says that he mailed the summons served upon him, though he states he addressed the envelope containing it. A portion of his second affidavit in this regard reads:

"Affiant further states that in his former affidavit, in which he said 'that I mailed said summons' to Superintendent Charles, and that in his letter of January 8, 1914, to Clifford L. Jackson, general attorney for said railway company, wherein he said that he notified Superintendent Charles' office 'by sending summons as served on me as agent,' that affiant did not mean to be understood as having any personal recollection of having actually mailed said summons on the train or in the post office, or having actually sent said summons to Superintendent Charles, but that he had placed said summons in an envelope as above stated, and had addressed the envelope to Superintendent Charles. Affiant states that he has examined the copy of said summons which has been found in the station at Hallett, and that it appears to be like the copy which was given him by the deputy sheriff."

¶4 By section 5033, Rev. Laws 1910, it is provided that a former verdict, report, or decision shall be vacated, and a new trial granted, on the application of the party aggrieved for any of the several grounds therein set forth, among which is the following: "Third. Accident or surprise, which ordinary prudence could not have guarded against." And by section 5267, subd. 7, a district court may vacate its own judgments or orders "for unavoidable casualty or misfortune, preventing the party from prosecuting or defending." Whether the proceedings were brought under section 5033 or 5267, subd. 7, is immaterial; for it would lie under neither upon the showing made. In the petitions of defendant to vacate the judgment and for a new trial we find that the relief asked is based on "irregularity on the part of the prevailing party" and "in the obtaining of said judgment," "accident or surprise which ordinary prudence could not have guarded against," and "unavoidable casualty and misfortune." That there was any irregularity in the proceedings below in obtaining the judgment has apparently been abandoned on appeal, as it is not referred to in the brief of counsel for plaintiff in error. As regards "accident or surprise," no doubt, the defendant was surprised upon learning that default judgment had been taken against it; but the surprise, if it resulted from learning of the judgment, was due to the negligence of its agent in not notifying the proper officers of...