Poff v. Lockridge

• Court: Oklahoma Supreme Court
• Writing for the Court: TURNER, J.
• Citation: Poff v. Lockridge, 98 P. 427, 22 Okla. 462, 1908 OK 209 (Okla. 1908)
• Decision Date: 11 November 1908
• Parties: POFF v. LOCKRIDGE.

98 P. 427

22 Okla. 462, 1908 OK 209

POFF v. LOCKRIDGE.

Supreme Court of Oklahoma

November 11, 1908

Syllabus by the Court.

The issues arising upon the pleadings as to the sufficiency of the grounds upon which a judgment is sought to be vacated or modified, together with the validity of the defense sought to be interposed to the action, are triable to the court without the intervention of a jury, within the meaning of Mansf. Dig Ark. § 3913 (Ind. T. Ann. St. 1899, § 2593).

[Ed Note.-For other cases, see Jury, Dec. Dig. § 16 ^[*]]

An application to vacate or modify a judgment is addressed to the sound legal discretion of the court, and will not be disturbed on appeal, unless it clearly appears that the court has abused its discretion.

[Ed Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3877, 3878; Dec. Dig. § 982. ^[*]]

Error to the United States Court for the Southern District of the Indian Territory at Purcell; J. T. Dickerson, Judge.

Action by Ben Lockridge against Maggie May Poff. Judgment for plaintiff, and defendant brings error. Affirmed.

On September 25, 1905, Ben Lockridge, defendant in error, plaintiff below, brought suit in the United States Court for the Indian Territory, Southern District, at Purcell against Maggie May Poff, plaintiff in error, defendant below, to set aside a judgment rendered by the court at a previous term against him in her favor for possession of a certain tract of land, and for mesne profits, on the ground that he had a good defense to that action, and that casualty and misfortune prevented him from appearing and defending. After motion to strike and demurrer to the complaint were filed and overruled, defendant answered April 5, 1906, and, the cause coming on for trial, demanded a jury "as in an action by proceedings at law," which was by the court denied, the issues tried to the court, and judgment rendered in favor of plaintiff, the court finding that he was unavoidably prevented from appearing and defending the action complained of, without fault or negligence on his part; that he had a good defense to the same, and that the judgment be set aside, and plaintiff be restored to his original rights, with the right to defend the same, to all of which defendant excepted, and, after motion for a new trial was filed and overruled, took a writ of error to the United States Court of Appeals in the Indian Territory, and the case is now before us for review.

J. W. Hocker, for plaintiff in error.

F. E. Riddle, for defendant in error.

TURNER J.

This is a suit to set aside a judgment under Mansf. Dig. Ark. § 3909 (Ind. T. Ann. St. 1899, § 2589). It is contended by plaintiff in error, hereafter called defendant, that there is a misjoinder of causes of action, in that defendant in error, hereafter called plaintiff, in his petition has also joined an action for the wrongful taking of personal property. In this we cannot agree. The petition, in stating facts sufficient to entitle plaintiff to a temporary injunction pending the suit (which was not granted so far as the record shows), sets forth, in effect, that defendant had not only already sued out one execution on the judgment wrongfully obtained, which had been levied on all the property plaintiff then had, and the same sold, leaving him destitute, but was threatening to levy a second execution to enforce the collection of said judgment on property produced by him since that time. No judgment is asked in damages against any one for the value of this property, no one but Maggie May Poff made a party defendant, and the only relief prayed or granted by the court was the setting aside of the judgment.

It is next contended that the petition fails to state facts sufficient to constitute a cause of action-that is, fails to state facts sufficient to invoke the discretion of the court to set aside the judgment-in that the petition discloses that the judgment was taken as a result of the negligence of plaintiff's attorney. It is said in 23 Cyc. 939, 940: "It is a general rule that the negligence of an attorney is imputable to his client, and that the latter cannot be relieved from a judgment against him in consequence of the neglect or inattention of the former"-and authorities cited. And this seems to be the rule as laid down in Welch v. Challen, 31 Kan. 696, 3 P. 314, and followed by the Supreme Court of the Territory of Oklahoma in Marshall v. Marshall, 7 Okl. 240, 54 P. 461, and Wynn v. Frost, 6 Okl. 89, 50 P. 184. But does the petition so disclose? We think not. It, in effect, upon this point states that the suit in which the judgment complained of was taken was brought against him by defendant on March 1, 1902; that he employed an attorney, who filed answer in due time, and the cause continued until the October term; that a few days prior thereto plaintiff's son was taken sick, and grew worse until October 28th, when he died, and that, on account of his sickness and death, he was prevented from attending court; that a few days prior to said term, he wrote and mailed his said attorney a letter addressed to him at his place of residence at Pauls Valley, where said suit was pending, notifying him of the facts, as stated, and fully relied on him to postpone the cause; "that he never at any time had any reason his said attorney did not look after same, and had no notice that any action was taken in said cause until long after the expiration of said term of court"; that immediately thereafter he saw his attorney, and informed him of the circumstances, whereupon he replied that plaintiff was always sick, and advised him to get another lawyer. No negligence on the part of the attorney is charged, and we can infer none. If it can be contended that the presumption obtained that the attorney received the letter through due course of the mails, another presumption would obtain that he did his duty when he got it.

It is next contended that the court erred in overruling the demurrer in that the petition on its face discloses laches. Notwithstanding the fact that no statute was in force in that jurisdiction limiting the time within which this character of action was required to be brought, it is nevertheless true that a party seeking to invoke the remedy must do so within a reasonable time, and we see no reason why a demurrer should not be sustained to a petition disclosing on its face that he had not done so. 12 En. Plea. & Prac. 832, 17 Am. & Eng. Enc. of Law (2d Ed.) 841, states the rule thus: "In the absence of statute it is very generally considered that a party seeking to have a judgment opened or vacated must proceed with proper diligence, and take the proper steps therefor within a reasonable time, and that his right to relief may be lost by laches. It is of course impossible to lay down any fixed rule as to what will constitute such laches as to deprive a party of any right to relief against a judgment, but such case must be governed by its own circumstances." But does the face of the petition disclose laches? We think not. It alleges that the judgment recovered was not only for the land upon which he lived and had just raised a crop, but was for $450 mesne profits and costs; that before he knew of its existence, a writ of restitution issued dispossessing him, and was levied on his entire crop, which was sold, leaving him destitute. It then recites at length his persistent efforts, without means, to employ counsel to bring suit to set aside the judgment, and give him an opportunity to plead to the merits, which he finally succeeded in doing some three years thereafter, in the face of another threatened execution to enforce the same judgment, "without his being paid a fee in advance, and that said attorney has agreed to wait on him until he could make something with which to pay." Under the circumstances the petition on its face disclosed no laches, and for that and the reason stated the court did not err in overruling the demurrer thereto.

After the demurrer was filed and overruled, defendant answered, and went to trial, first demanding a jury to try the cause, which was denied, and this constitutes the next assignment of error. Defendant predicates this right on Mansf. Dig. Ark. § 3909 (Ind. T. Ann. St. 1899, § 2589), which is as follows "The court in which a judgment or final order has been rendered or made shall have power, after the expiration of the term, to vacate or modify such judgment or order. *** Seventh. For unavoidable casualty or misfortune preventing the party from appearing or defending." And on Mansf. Dig. Ark. § 3911 (Ind. T. Ann. St. 1899, § 2591): The proceedings to vacate or modify the judgment or order, on the grounds mentioned in the fourth, fifth, sixth, seventh and eighth subdivisions of section 3909 shall be by complaint, verified by affidavit, setting forth the judgment or order, the grounds to vacate or modify it, and the defense to the action, if the party applying was defendant. On the complaint, a summons shall issue and be served, and other proceedings had as in an action by proceedings at law." And especially relies on the latter part of this section. But these sections must be construed in connection with Mansf. Dig. Ark. § 3913 (Ind. T. Ann. St. 1899, § 2593), which reads: "The court may first try and decide upon the grounds to vacate or modify a judgment or order before trying or deciding upon the validity of the defense or cause of action." While this question seems never to have been passed on in the construction of these statutes by the Supreme Court of Arkansas, we observe the practice has always been in that jurisdiction to try these questions to the court. This was the practice observed in Johnson v. Campbell, 52 Ark. 316, 12 S.W. 578, State National Bank v. Neel, 53 Ark. 110, 13 S.W....