Pulaski Oil Co. v. Conner

• Decision Date: 21 November 1916
• Docket Number: 7840.
• Citation: 162 P. 464,62 Okla. 211,1916 OK 976
• Parties: PULASKI OIL CO. v. CONNER.
• Court: Oklahoma Supreme Court

162 P. 464

62 Okla. 211, 1916 OK 976

PULASKI OIL CO. v. CONNER.

No. 7840.

Supreme Court of Oklahoma

November 21, 1916

Rehearing Denied Jan. 22, 1917.

Syllabus by the Court.

Where a party, or his counsel, writes letters to the clerk of a court inquiring about the status of his pending cause, which are not answered, and allows nearly two months to elapse thereafter without further inquiry or other steps to learn the progress of the case, and a default judgment results from the failure of such party to attend to his rights in the litigation, in a motion to vacate the judgment such party may not predicate his own neglect of the cause upon the neglect of the clerk; and under such circumstances a motion to vacate the judgment upon the ground of the mistake, neglect, or omission of the clerk is properly overruled.

Where a defendant is in default, and the case is set for trial upon the default at a nonjury term of court, and the case comes on regularly for trial, plaintiff not demanding a jury trial and defendant not being present, the case is properly tried to the court without a jury; and the setting of such cause at a nonjury term and such trial are not grounds upon which such judgment should be vacated.

Where a judgment by default is had upon a petition for damages by an oil and gas lessee to the surface rights of land, and the petition alleges that plaintiff is the sole owner of the land, and nothing in the record, aside from the motion to vacate the judgment, discloses that plaintiff is not such sole owner, and the evidence is not in the record, such ownership is one of the issuable allegations of fact in the petition, and, in the absence of fraud, will be presumed to have been proven on the trial, and under these circumstances a motion to vacate such default judgment upon the ground of defect of parties is properly overruled.

In the absence of contrary expression in the lease, a lessee in an oil and gas lease has only such rights to the surface of the leased land as may be necessarily incident to the exercise of his rights under the lease, and must protect the surface rights in so far as such incident necessity does not exist. Petition alleging negligent injury to surface rights by such a lessee examined, and held to sufficiently state a cause of action to support a judgment by default.

Commissioners' Opinion, Division No. 3. Error from County Court, Pawnee County; G. E. Merritt, Judge.

Action by David Conner against the Pulaski Oil Company, a corporation, in which default judgment was rendered for plaintiff. Its motion to vacate the default being overruled defendant brings error. Affirmed.

George T. Brown, of Tulsa, for plaintiff in error.

Goodwin & Smith, of Cleveland, for defendant in error.

JOHNSON C.

This is an appeal from an order of the county court of Pawnee county overruling a motion to vacate a default judgment.

David Conner sued the Pulaski Oil Company in the said county court to recover damages to surface rights of land arising from negligent operations under an oil and gas lease. Upon November 12, 1914, and before answer day, defendant filed its motion to quash service of summons. Upon February 23, 1915 pursuant to regular setting of motions in said court, the court heard and overruled the motion to quash, in the absence of defendant, and allowed defendant ten days to plead. On May 3, 1915, the case coming on for trial, and defendant not having filed any pleading, and not appearing, the evidence of plaintiff was heard, and judgment by default was rendered in favor of plaintiff and against defendant. Thereafter, on May 15, 1915, defendant filed its verified motion to vacate the default judgment, alleging: (1) That the default judgment occurred as the result of the mistake, neglect, and omission of the clerk of the court; (2) that the court erred in setting the case for trial at a time when no jury was to be had; (3) that there was a defect of parties plaintiff in the petition; and (4) that the petition did not state a cause of action. The county court overruled the motion to vacate without taking evidence, upon the ground that the motion did not set up facts sufficient to entitle defendant to the relief sought.

As tending to show that the default was occasioned by the mistake, neglect, and omission of the clerk, and not by the fault of the defendant, the motion set forth: That the case was pending in the Cleveland division of the county court of Pawnee county; that counsel for defendant resided in the city of Tulsa, Okl., the principal place of business of defendant being in the said city of Tulsa; that counsel for defendant made inquiry of certain members of the bar of said county court, and was advised by them that the Cleveland division of the court did not transact a great deal of business, only convened two or three times a year, had only held two or three jury terms during the time of its existence, and that the times and terms of the court were largely determined and regulated by the members of the bar of Pawnee county acting in conjunction with the county judge; that counsel for defendant had certain correspondence with the clerk of the court, in an endeavor to keep in touch with the progress of the case; that, after the service of the summons, counsel wrote two letters to the clerk asking for a copy of the petition, and received no reply until after the filing of his motion to quash, when he received a letter from the clerk, under date of November 13, 1914, apologizing for negligence in replying to the letters of counsel, and stating that he would be more prompt next time; that, after the filing of the motion to quash, viz. on January 7, 1915, February 24, 1915, and March 10, 1915, counsel wrote to the clerk of the court letters, which are set up in the motion to vacate the judgment, requesting that the clerk inform counsel when the motion to quash would be set for hearing, and whether notice would be given counsel; that these letters contained the return address of counsel, and were not returned, but that the clerk did not reply to any of them. Plaintiff in error contends that by these letters counsel for defendant exercised due diligence in attempting to attend to the progress of the case; that the order overruling the motion to quash and allowing...