Okmulgee N. Ry. Co. v. Okla. Salvage & Supply Co., Case Number: 18538

• Court: Supreme Court of Oklahoma
• Writing for the Court: RILEY, J.
• Citation: 1928 OK 606,133 Okla. 64,271 P. 167
• Docket Number: Case Number: 18538
• Decision Date: 09 October 1928
• Parties: OKMULGEE NORTHERN RAILWAY CO. v. OKLAHOMA SALVAGE & SUPPLY CO. et al.

1928 OK 606
271 P. 167
133 Okla. 64

OKMULGEE NORTHERN RAILWAY CO.
v.
OKLAHOMA SALVAGE & SUPPLY CO. et al.

Case Number: 18538

Supreme Court of Oklahoma

Decided: October 9, 1928

Syllabus

¶0 Attorney and Client--Judgment--Attorney Without Power to Withdraw His Appearance and Pleading After Final Judgment in Favor of Client--Court Without Power on Own Motion to Vacate Judgment and Then Render Judgment by Default Against Client.

Where an attorney represents a defendant in an action, and after final judgment in defendant's favor and after term time, the attorney, as a hostile act toward his client, seeks to withdraw his appearance in the cause and the pleadings filed by him, held, the entry of final judgment terminated the relation of the attorney to the cause. Held, further, the court was without power to permit the withdrawal of the attorney's appearance and pleadings. Held, further, the court was without power upon its own motion to vacate the judgment in favor of defendant under theory that it was void, the same being a general finding in favor of defendant and no one of the jurisdiction elements being absent. Held, further, the judgment in default was properly vacated for irregularities in obtaining it under section 810, subdivision 3, C. O. S. 1921.

W. C. Alley, for plaintiff in error.

R. E. Simpson, for defendants in error.

RILEY, J.

¶1 This is an appeal from the judgment of the district court rendered April 9, 1927, vacating and setting aside a judgment of said court rendered September 4, 1924, on account of irregularity in obtaining it, also recalling execution issued February 21, 1927, upon said judgment vacated.

¶2 It appears from the journal entry of judment that Sam M. Sanditen moved to set aside the judgment of September 4, 1924, and to recall execution of February 21, 1927, issued on said judgment. The parties were present in court, and upon hearing the court found that on April 3, 1924, the said district court rendered judgment in said cause in favor of defendant Sam M. Sanditen and against plaintiff, Okmulgee Northern Railway Company, and said defendant was duly and legally represented by his attorney, A. L. Emery, at the time of rendition of said judgment. No appeal was made, and the judgment in favor of defendant Sanditen became final. Thereafter, on the 4th of September, 1924, and at a subsequent term of said court, the said attorney who had represented said defendant Sanditen filed a motion in said cause asking leave to withdraw as attorney for said defendant Sanditen, as well as leave to strike his appearance and all pleadings filed by said attorney on behalf of defendant Sanditen, whereupon said court, the Honorable James Hepburn presiding, entered its order, September 4, 1924, sustaining said motion, and vacated said judgment in favor of defendant Sanditen.

¶3 Thereafter and upon the same day, September 4, 1924, the said court rendered judgment by default against defendant Sanditen in the sum of $ 1,112.86, interest, and costs, and in favor of plaintiff, Okmulgee Northern Railway Company, a corporation.

¶4 The trial court found that the judgment made and entered September 4, 1924, sustaining said motion of said attorney for said defendant Sanditen, was made without notice of time and place of hearing of said motion to defendant Sanditen and that he was without opportunity to be heard; that said judgment was void and should be set aside; that said judgment of September 4, 1924, setting aside and vacating the judgment in favor of defendant Sanditen, was made on the court's own motion, thus the term of court at which said former...