Singleton v. LePak, 41052

• Decision Date: 07 February 1967
• Docket Number: No. 41052,41052
• Citation: 425 P.2d 974,1967 OK 37
• Parties: Eugene R. SINGLETON, Plaintiff in Error, v. Louis LePAK, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 974

425 P.2d 974

1967 OK 37

Eugene R. SINGLETON, Plaintiff in Error, v. Louis LePAK, Defendant in Error.

No. 41052.

Supreme Court of Oklahoma.

Feb. 7, 1967.

Rehearing Denied March 7, 1967.

Syllabus by the Court

1. Where a default judgment is rendered against defendant and a petition to vacate is promptly filed, even though after term, a demurrer to the petition is properly overruled if the petition alleges grounds for relief and all of the circumstances demonstrate that sustaining the demurrer results in serious injustice, and constitutes an abuse of judicial discretion, this Court will not reverse on appeal.

2. As against a demurrer, a petition must be liberally construed, and all of its allegations of fact must be taken as true, together with all reasonable inferences therefrom. If any fact stated therein entitled the pleader to any relief, the demurrer should be overruled.

3. While it is true that diligence of litigants in attending to their matters pending in the courts is of importance and while it is a significant function of the courts that the litigation before them be determined and disposed of as rapidly as possible, it is also important that all litigants be given a reasonable opportunity to have their day in court.

4. It is not error for the court to assess the costs against the plaintiff, where plaintiff's demurrer to the petition to vacate judgment is overruled and plaintiff refuses to plead further and elects to stand on his demurrer.

Appeal from the District Court of Oklahoma County; Clarence Mills, Judge.

Action by Eugene R. Singleton, plaintiff in error, against Louis LePak, defendant in error, for personal injuries in which default judgment was rendered in favor of plaintiff and defendant filed petition, after term, to vacate default judgment to which plaintiff filed a demurrer which the trial court overruled and rendered judgment vacating default judgment. From such order and judgment plaintiff in error perfected his appeal. Affirmed.

John H. Kennedy, Oklahoma City, for plaintiff in error.

Miskovsky, Sullivan, Embry, Miskovsky & Turner, by George Miskovsky, Jr., Oklahoma City, for defendant in error.

PER CURIAM.

This is an appeal upon the original record by Eugene R. Singleton, plaintiff in error, (plaintiff below) from an Order of the District Court of Oklahoma County, overruling the demurrer of plaintiff in error to the petition of Louis LePak, defendant in error, (defendant below) to vacate a default judgment rendered in favor of plaintiff in error. The parties will be referred to by their trial court designation.

Plaintiff filed his original petition on November 22, 1963 and, after obtaining service upon the defendant on November 25, 1963 by serving a member of the family over the age of 15, to-wit, a 16 year old son, the plaintiff obtained default judgment for damages for personal injuries on January 2, 1964. The answer date was December 22, 1963. On January 23, 1964 the defendant filed a petition to vacate the default judgment.

The petition of defendant to vacate the default judgment was based upon the provisions of 12 O.S.1961, § 1031, on the grounds provided in Subdivision Four for fraud practiced by the successful party and Subdivision Seven for unavoidable casualty or misfortune preventing defendant from defendant the action, alleging also that there was no competent evidence presented to the court to sustain the judgment. Plaintiff filed his demurrer to the petition to vacate said judgment upon the grounds that said petition stated conclusions of law and failed to state facts sufficient to justify the vacation of said judgment.

The petition to vacate the default judgment alleged as facts in support thereof that the defendant reported the accident, which occurred on June 11, 1963, to his insurance company which then started, through their attorneys, negotiations with the attorney for the plaintiff in September, 1963; that plaintiff's attorney received a letter and engaged in telephone conversations with Kenneth M. McKinney, attorney for the American Casualty Company, who undertook to represent the interests of the defendant LePak in this accident (Mr. McKinney never made a formal appearance after suit was filed); that thereafter suit was filed on November 22, 1963, service obtained by delivering a copy to the defendant's 16 year old son, who did not give it to the defendant; that default judgment was thereafter rendered without the filing of a motion for default judgment or notice to the defendant or Mr. McKinney that a default judgment was being requested; that there was no competent evidence presented to the court to sustain the judgment.

The plaintiff demurred to the petition to vacate the default judgment and fiercely resisted all testimony in support thereof. It is worthy of note that the petition alleges minor medical expense and that the default judgment was taken in the amount of $43,460.00, which included the prayer of $40,000.00 for pain and suffering past and future. The plaintiff, after the overruling of his demurrer to the petition, did not file a response and objected to the introduction of any evidence in support of defendant's petition. The court permitted the defendant to offer evidence in support of its petition to vacate the default judgment and ruled that the default judgment should be vacated with costs taxed to the plaintiff. The plaintiff stood on the ruling to his demurrer to the petition and announced his intention to appeal to the Supreme Court. Plaintiff does not argue that the evidence at the hearing on the petition was insufficient to support the allegations thereof, or that, if the petition is sufficient to withstand a general demurrer, the vacating of the default judgment was erroneous.

By his petition in error, the plaintiff alleges three grounds for reversal, to-wit, that the court erred in (1) rendering a judgment overruling the demurrer of plaintiff in error to the petition to vacate the default judgment; (2) granting the defendant leave to file his answer accompanying his petition to vacate default judgment, and (3) assessing the costs in said action against the plaintiff Eugene R. Singleton. These contentions will be taken up in the order in which they were presented.

The petition to vacate the default judgment alleged the statutory ground of unavoidable casualty or misfortune, Subdivision Seven, and actual or constructive fraud, Subdivision Four of Title 12, § 1031, and facts to support these allegations, that is that the accident was reported to his insurance carrier whose attorney contacted the attorney for plaintiff and thereby undertook the representation of defendant; that the default judgment was later entered without notice of the filing thereof to either the defendant or the attorney who had previously contacted the plaintiff's attorney and without presenting evidence in support thereof.

Is this a sufficient allegation to withstand a general demurrer to a petition to vacate a judgment by default after the term has ended? Stated in the alternative, should the defendant be denied the opportunity to introduce evidence to support his petition? We think not. And if the trial court should receive evidence, then the demurrer was properly overruled.

In considering a general demurrer, this Court is bound by the rule that a petition must be liberally construed in favor of the pleader for the purpose of the demurrer and all reasonable inferences resolved in favor of the party resisting the demurrer. Carter v. Grimmett, 89 Okl. 37, 213 P. 732; Fowler v. Van Francis Typesetting Co., Okl., 362 P.2d 107.

This is a petition to vacate a default judgment. Default judgments are not favored. Morrell v. Morrell, 149 Okl. 187, 299 P. 866, and cases collected under 9 Okl. Digest, Judgments, Sec. 138(1). Further extending this rule of law and indicative of present thought, a rule has been adopted by the District Court of the 7th Judicial District in which this judgment was rendered (Rule 12) and by this Court to insure a litigant his fair day in court. ¹ This case was never placed on a regular pre-trial or trial docket. The haste with which the default judgment was taken (10 days after answer day and four days before the term ended) coupled with the amount of the judgment and the vigor with which the petition was resisted, the strenuous objection to any testimony and the trial court's ruling that the default judgment should be vacated, would indicate that this litigant has been denied his fair day in court. While it is true that diligence of litigants in attending to their...