Pitts v. Walker
| Decision Date | 24 September 1940 |
| Docket Number | 29462. |
| Citation | 105 P.2d 760,188 Okla. 17,1940 OK 387 |
| Parties | PITTS v. WALKER. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. A judgment based on an error of law may be vacated by the trial court at the term when rendered notwithstanding such error may have been invited by the party against whom the judgment was entered.
2. A payment made on open account by the debtor with the intention that such payment be applied on the balance then due will set the statute of limitations in motion anew as to all items entered prior to said payment (sec. 107, O.S.1931, 12 Okl.St.Ann. § 101).
3. In an action on open account, a credit appearing on said account attached to the petition in conformity with section 235 O.S.1931, 12 Okl.St.Ann. § 301, is equivalent to a direct allegation that said credit represents a payment made by the debtor with the intention that it be applied on the balance then due.
Appeal from District Court, Osage County; Hugh C. Jones, Judge.
Action by J. B. Walker, sole owner of and doing business as the Hominy Motor Company, against George Pitts, on an ordinary open account. From an order vacating a former judgment rendered on the pleadings in favor of the defendant, the defendant appeals.
Affirmed.
Ralph A. Barney, of Pawhuska, for plaintiff in error.
Leander Hall, of Hominy, for defendant in error.
This is an appeal by defendant below from an order of the trial court vacating its former judgment rendered on the pleadings in favor of defendant.
The action was on an ordinary open account that had extended over a period of eight or nine years. The last payment thereon was made by defendant within three years prior to the commencement of the action.
The answer, in addition to a general denial, pleaded the statute of limitations, sec. 101, O.S.1931, 12 Okl.St.Ann. § 95.
Plaintiff moved for judgment on the pleadings and the court rendered judgment in his favor only for those items charged within the three years next preceding the commencement of the action and denied recovery for all items entered prior thereto on the theory that as to those items the action was barred by the three years statute, sec. 101, supra, subd. 2.
Subsequently at the same term, the court on plaintiff's motion vacated the judgment and granted a new trial on the theory that evidence was essential to the proper determination of the issues as raised by the pleadings.
Defendant takes the position that the judgment on the pleadings was correct and that the order vacating the same was for that reason erroneous as a matter of law.
The trial court has full control over its orders and judgments during the term at which they are rendered and may, in the exercise of its sound discretion, vacate or modify the same for sufficient cause shown. Montague v. State ex rel. Commissioners of the Land Office et al., 184 Okl. 574, 89 P.2d 283. In any case where the judgment is based on an error of law the court may vacate the same at the term in which it was rendered. 34 C.J. 289; see also Western Union Telegraph Co. v. Martin, Adm'r, 186 Okl. 24, 95 P.2d 849.
If the court erred in rendering judgment on the pleadings in the first instance, then its order vacating such judgment on that ground would not amount to an abuse of discretion notwithstanding plaintiff may have invited the error by moving for judgment.
Considerable argument is devoted to the question whether the judgment on the pleadings was appropriate. Defendant contends that the account sued upon was a simple open account and that the court was correct in holding that each item therein was a separate transaction and recovery thereon barred as to all such items of over three years standing. Sharp v. Miller,...
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