Nation v. Savely

• Court: Oklahoma Supreme Court
• Writing for the Court: HALL, C.
• Citation: Nation v. Savely, 260 P. 32, 1927 OK 350, 127 Okla. 117 (Okla. 1927)
• Decision Date: 11 October 1927
• Docket Number: Case Number: 17371
• Parties: NATION v. SAVELY et al.

1927 OK 350

260 P. 32

127 Okla. 117

NATION v. SAVELY et al.

Case Number: 17371

Supreme Court of Oklahoma

Decided: October 11, 1927

Syllabus

¶0 1. Judgment--Vacation of Default Judgment for "Irregularity in Obtaining Judgment"--Lack of Notice to Defendant as to Trial Date--Discretion of Court.

Sections 579 and 580, C. O. S. 1921, relating to the time and manner of setting cases for trial and publication of the trial docket before the regular session or term of court, are vital provisions for the benefit of litigants; and by virtue of the first clause of the third subdivision of section 810 of the statutes, where a default judgment has been rendered, the aggrieved person, by a reasonable application, upon showing that these statutes were not complied with, may have the judgment set aside at or after the term after such judgment or order was rendered, unless such aggrieved person had actual notice of the trial in time to appear and defend or prosecute his cause. The second clause of said subdivision of section 810 of the statutes, which provides for relief against "an irregularity in obtaining a judgment," is in its nature a flexible provision addressed to the sound legal discretion of the court--to the trial court primarily, and to this court on review.

2. Same--Judgment Taken Without Notice Properly Set Aside.

In this case it is held that, where the plaintiff, upon whom rested the initiative, permitted his cause to lie dormant for five years without further pleading to the answer, or electing to stand on his demurrer thereto, but went into court and took judgment without notice to the attorney representing the adverse party, such constitutes an irregularity which clearly warranted the trial court in setting aside the judgment after term time and granting a new trial.

Commissioners' Opinion, Division No. 2.

Error from County Court, Oklahoma County; C. C. Christison, Judge.

Proceeding by motion of W. H. Savely and Terry Marlin against W. E. Nation to set aside a judgment rendered against them at a previous term of the court. Motion sustained, and judgment set aside. Plaintiff brings error. Affirmed.

Shirk, Danner & Mills, for plaintiff in error.

Snyder, Owen & Lybrand and McCollum & McCollum, for defendant in error.

HALL, C.

¶1 This case presents a part or one stage of the evolution of a certain lawsuit filed in a court of a justice of the peace in the year 1913, which reached the Supreme Court under the style of Nation v. Savely, 66 Okla. 229, 168 P. 805, out of which evolved Nation v. Savely et al., 74 Okla. 23, 176 P. 937. This appeals brings the latter case to this court for a second time, but upon somewhat different issues.

¶2 On November 29, 1913, W. H. Savely, who is a defendant in error in this action, commenced an action against W. E. Nation, plaintiff in error herein, before a justice of the peace of Pawnee county for the sum of $ 144. On that date the said W. H. Savely filed with the justice of the peace an attachment affidavit for the attachment of Nation's property, and an attachment bond in the sum of $ 288 with Terry Marlin as surety. The order of attachment was executed. On January 6, 1914, the justice of the peace rendered, judgment for the plaintiff, W. H. Savely, and against defendant, W. E. Nation, and sustained the order of attachment. Within the time provided by law, Nation filed an appeal bond with the justice of the peace, and appealed the cause to the district court of Pawnee county. Whether the defendant's property was released upon filing this appeal bond is not disclosed by the proceedings.

¶3 On February 3, 1915, the cause was tried in the district court of Pawnee county; and it appears that the court and counsel representing the defendant were first under the impression that both the main action and the ancillary action, the attachment, were before that court on appeal. The court at first rendered judgment to that effect and dissolved the attachment. At a subsequent date, and within the term time, he modified the judgment to the extent of sustaining a demurrer to the evidence pertaining to the attachment phase of the case, apparently basing his decision upon the theory that in such a case two separate appeals must be taken, one from the main action and one from the ancillary action. This was the contention of the attorneys representing the plaintiff, and it appears to be their contention still.

¶4 The case was appealed to the Supreme Court, and this court held that the court below was correct in sustaining a demurrer to any evidence as to the wrongfulness of the attachment, but sustained it upon the grounds that the appeal bond executed by the defendant automatically dissolved the attachment, and that there is no provision in our law providing for an appeal from an order of the justice of the peace in sustaining an attachment.

¶5 On February, 8, 1915, the said W. E. Nation, who is plaintiff in error in this action, and who will be hereinafter referred to as plaintiff, filed in the county court of Oklahoma county his petition against W. H. Savely and Terry Marlin, defendants in error herein, who will be hereinafter referred to as defendants, alleging a wrongful issuance of the order of attachment as aforesaid by the defendant Savely, alleging that he had suffered injuries and asked damages against the defendants, the obligors on the attachment bond in the sum of $ 288, and interest and attorney's fee. The defendants filed a motion to abate this cause of action and the plaintiff filed a motion to strike the motion of defendants to abate the action, which motion to strike was based upon the ground that the matter therein set up was not proper matter for a motion, but, if pleaded at all, should be incorporated into an answer. Plaintiff also filed a demurrer to the defendants' motion. On August 23, 1915, the plaintiff's demurrer and motion to strike were overruled, and defendants' motion to abate the action was sustained. From this judgment or order the plaintiff appealed to the Supreme Court, and in the case of Nation v. Savely et al., 74 Okla. 23, 176 P. 937, this court reversed the judgment of the lower court, and held that it was improper to sustain the motion to abate the action, but further held that the motion to abate should be treated as an answer to the petition. On January 4, 1919, the mandate and copy of the opinion were filed among the files of the case in the office of the court clerk of Oklahoma county. The case lay dormant for nearly five years; then, on February 14, 1924, the county court rendered a judgment in said cause in favor of plaintiff and against the defendant in the sum of $ 288 plus interest and an attorney fee of $ 50. The defendants made default; that is, failed to appear at the trial. On the 20th day of May, 1925, the defendants appeared in court and filed their motion to vacate the judgment upon the grounds that they had received no proper notice of the setting of the case for trial, and further that the judgment was void, alleging that the question had become moot. Service of this motion was made on the attorneys representing the plaintiff, and they appeared specially and contested the motion. On April 2, 1916, the county court sustained the motion to vacate and set aside the judgment and rendered judgment accordingly, from which judgment or order the plaintiff lodged in this court its appeal, and that is now the question before us, together with such other angles and ramifications of the case as are necessary for a rational determination of the issues therein.

¶6 The principal issue in this case is whether or not, upon the facts disclosed, the court was warranted in setting aside the judgment rendered at a previous statutory term of the court.

¶7 Default judgments rendered in cases where the claims are contested or challenged by pleadings which are not frivolous should be looked upon with considerable suspicion.

¶8 Undoubtedly the lawmakers, in enacting sections 579, 580, and 810, C. O. S. 1921, intended to afford some means of protection to a person against whom a default or "snap" judgment has been rendered: (1) Where the provisions of said sections 579 and 580 have not been complied with, unless the person against whom the judgment is rendered, or his attorney, is given actual notice of the proceedings at such a time prior to the trial as will enable him to appear before the court and protect his rights; (2) or in any case where there has been a substantial irregularity in obtaining the judgment, such as a course of conduct on the part of the person taking the judgment as is calculated to be misleading to the adverse party, or such as would be distinctly inconsiderate of his substantial rights, one of which is the right to his day in court, to be present or represented at the trial.

¶9 The term "irregularity in obtaining a judgment" has no fixed legal meaning. In every instance the question is one of fact, dependent upon the circumstances of each case. It logically follows that the application of this provision of the statute is addressed to the sound legal discretion of the court, to be exercised in furtherance of justice, on the particular facts of the case. It will be observed that we use the expression "sound legal discretion," which negatives arbitrary action or unsound exercise of discretion. In other words, it is an abuse of discretion or reversible error to vacate a judgment where the moving party shows no recognized legal ground therefor.

"On the other hand, if he shows himself plainly and justly entitled to the relief demanded, the court must grant the application, and has no discretion to refuse it." 34 C. J. 370; Albright v. Warkentin, 31 Kan. 442, 2 P. 614; McSpadden v. Richardson, 59 Okla. 124, 157 P. 1153; Griffin et al. v. Jones et al., 45 Okla. 305, 147 P. 1024; Hodges v. Alexander, 44 Okla. 598, 145 P. 809.

¶10 The rule is well stated by the Supreme Court of California in Bailey v. Taaffe, 29 Cal. 422, as follows:

"The

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