Shuler v. Viger
| Decision Date | 24 June 1924 |
| Docket Number | Case Number: 14038 |
| Citation | 1924 OK 647,103 Okla. 129,229 P. 280 |
| Parties | SHULER v. VIGER et al. |
| Court | Oklahoma Supreme Court |
¶0 Appeal and Error--Abuse of Discretion--Refusal to Vacate Default Judgment.
What constitutes abuse of discretion on the part of the trial court in refusing to set aside a default judgment is dependent on the facts and circumstances surrounding each individual case. On appeal from such order this court will examine the record and determine therefrom if such discretion has been abused. Evidence in the present case examined and refusal held to constitute an abuse of discretion.
Commissioners' Opinion, Division No. 5.
Error from District Court, Tulsa County; W. B. Williams, Judge.
Action by F. G. Viger and C. D. Hughes against Isaac Shuler. From default judgment in favor of the plaintiffs, defendant brings error. Reversed.
C. R. Nixon, for plaintiff in error
F. G. Viger and F. E. Riddle, for defendants in error.
¶1 The plaintiff in error, Isaac Shuler, was the defendant in the trial court, and the defendants in error, F. G. Viger and C. D. Hughes, were the plaintiffs, and will be referred to as they appeared in the trial court.
¶2 The plaintiffs alleged in their petition that on and prior to August 4, 1919, the defendant, Isaac Shuler, was the owner of a certain string of standard tools for the drilling of oil wells, and that acting by and through his authorized agent, T. A. Simpson, he agreed orally with the plaintiffs that if the plaintiffs would sell the tools for the sum of $ 10,000, net for the defendant, or would find a purchaser for the same for that amount, they might retain any amount over and above said amount of $ 10,000, as their commission for making said sale.
¶3 Plaintiffs further alleged that they found one Stanley of Vernon, Tex., who purchased said tools for the sum of $ 15,000, which amount was paid by the said Stanley to the defendant, Shuler, and that the defendant paid the sum of $ 1,000 to the plaintiffs, which amount has been credited upon the amount due said plaintiffs by defendant, and that said defendant is now indebted to said plaintiffs in the sum of $ 4,000, the balance due under said contract, together with interest thereon.
The defendant, by his attorney, W. D. Abbott, filed a verified answer on the 9th day of October, 1920, denying that he authorized said T. A. Simpson to negotiate the sale of said tools on the basis of $ 10,000 net to the defendant, Shuler
The defendant admits that he personally sold the tools to the said Stanley for the sum of $ 15,000, and that he paid the plaintiffs herein the sum of $ 1,000 and the sum of $ 500 to the said Simpson, which sums were received by them in full for all services rendered or claimed to have been rendered by them or either of them in connection with the sale of the tools aforesaid, and further denies each and every material allegation contained in plaintiffs' petition
An unverified reply was filed by the attorneys for the plaintiffs, denying the allegations of defendant's answer.
¶4 On the 20th day of March, 1922, the plaintiffs, by their attorney of record, took a default judgment in said cause for the sum of $ 4,000, the amount prayed for in the petition, together with interest at the rate of 6 per cent. from the 28th day of August, 1919.On the 29th day of May, 1922, the defendant filed a petition to vacate said judgment, alleging that said judgment was void for the reasons set out in said motion.
¶5 The case was called to trial on the motion to vacate the judgment on the 24th day of June, 1922, and the defendant Isaac Shuler, appeared in person and the plaintiffs by their attorney of recordThe court, after hearing the evidence introduced on behalf of both parties, upon motion of attorney for the plaintiffs for judgment on the petition and evidence for the reason that said defendant had shown no legal grounds for vacating and setting aside the judgment rendered in this case, sustained the said motionTo review the action of the trial court the defendant has set out a number of assignments of error, the first of which is that the court erred "in holding that there was negligence on the part of the defendant, Isaac Shuler, in failing to employ other counsel to represent him in this case."
¶6 Upon the hearing of defendant's motion to set aside the default judgment Mr. Abbott stated that he had been the attorney for Mr. Shuler for a number of years; that in 1921 he represented the defendant in two cases, one in the federal court and the other the instant case; that the case in the federal court, which had been continued a time or two, was set for trial in September, 1921; that Mr. Shuler was sick and confined to his bed and that it became necessary to make application for a continuance, and that as he could not consult with his client, he stipulated with the attorney on the other side that the case--the one in the federal court--should be continued until that court convened at Hugo the following month; that he agreed that Mr. Shuler would pay the costs incident to bringing the witnesses from Texas; that in a general way he learned that Mr. Shuler felt that such agreement was unjust in that he, Shuler, should pay the costs, and to a certain extent the witness felt that Mr. Shuler was dissatisfied with the way he had handled the case; that he asked Mr. Shuler to come to his office, which he did, and that they had a perfectly friendly discussion of the matter; that he told Mr. Shuler that he felt he should have other counsel to represent him in these cases, which Mr. Shuler stated he would do so, and asked him, the witness, to handle some title matters, which the witness agreed to do.
¶7 Mr. Abbott further stated that the case in the federal court was the one Mr. Shuler was anxious about at that time, as it looked as though it would be forced to trial the first of the month; that that...
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