State Life Ins. Co. v. Liddell

• Decision Date: 20 October 1936
• Docket Number: Case Number: 25359
• Citation: 1936 OK 662,61 P.2d 1075,178 Okla. 114
• Parties: STATE LIFE INS. CO. v. LIDDELL et al.
• Court: Oklahoma Supreme Court

1936 OK 662

61 P.2d 1075

178 Okla. 114

STATE LIFE INS. CO. v. LIDDELL et al.

Case Number: 25359

Supreme Court of Oklahoma

Decided: October 20, 1936

Syllabus

¶0 1. PLEADING - Allowance of Trial Amendments - Discretion of Court.

The allowance of amendments to pleadings, during the trial, when they do not change substantially the claim or defense, rests in the sound discretion of the court.

2. JUDGMENT - Default Judgments not Viewed With Favor.

Default judgments are never viewed with favor. Litigated questions should be tried on their merits.

3. APPEAL AND ERROR - Judgment - Application After Judgment Term to Set Aside Default Judgment Addressed to Discretion of Trial Court.

An application to set aside a default judgment which has been filed after the term at which the judgment was rendered is addressed to the sound legal discretion of the trial court, and each case to a marked degree must depend upon its own facts and circumstances. In such case the granting or refusal to grant relief is largely a matter of discretion on the part of the trial court, which discretion seldom will be interfered with on appeal, but that discretion should always be exercised to promote the ends of justice.

Appeal from District Court, Love County; Asa E. Walden, Judge.

Action by the State Life Insurance Company to foreclose a mortgage against Minnie Liddell and others. From an order setting aside a default judgment against the defendant named, plaintiff appeals. Affirmed.

J. Woody Dixon and Snyder, Owen Lybrand, for plaintiff in error.

C.C. Wilkins, for defendants in error.

PER CURIAM.

¶1 The parties will be referred to herein as they appeared in the trial court. The plaintiff, the State Life Insurance Company, brought suit to foreclose a real estate mortgage against the defendant Minnie Liddell and others. Minnie Liddell is a Chickasaw Indian and the land covered by the mortgage is her homestead. After service of summons on her she engaged a lawyer who entered a special appearance and filed a motion to quash the summons. He appeared in court several times and obtained a postponement of the hearing on the motion. It was finally overruled, and the attorney apparently either withdrew or abandoned the case. Later, a default judgment was entered and decree of foreclosure rendered. At a subsequent term of court, the defendant Minnie Liddell filed a petition to vacate the judgment on the grounds stated in the seventh paragraph of section 5560, O. S. 1931, "for unavoidable casualty or misfortune preventing the party from prosecuting or defending." Later, an amendment to the petition was filed, setting up as an additional ground for vacating the judgment, "for fraud practiced by the successful party in obtaining the judgment or order," under the fourth paragraph of the same section of the statute.

¶2 After a hearing in which a great deal of evidence was introduced by both parties, the trial court vacated the judgment and gave the defendant Minnie Liddell 30 days to file an answer. From the order of court vacating the judgment, the plaintiff prosecutes this appeal. In order to avoid repetition the various assignments of error will be stated as they are discussed in the opinion.

¶3 Plaintiff contends that the court erred in permitting the amended petition to vacate the judgment to be amended by adding a verification. The attention of the court was not called to the fact that the amended petition was not verified until both parties had completed their evidence and rested. Whereupon the defendant asked leave to amend the petition by adding the verification, which leave was granted by the court. This was not an abuse of discretion on the part of the court.

"The allowance of amendments to pleadings, before or after judgment, when they do not change substantially the claim or defense, rests in the sound discretion of the court." Alcorn v. Dennis, 25 Okla. 135, 105 P. 1012; City of Shawnee v. Slankard, 29 Okla. 133, 116 P. 803; Herron v. M. Rumley Co., 29 Okla. 317, 116 P. 952; Trower v. Roberts, 30 Okla. 215, 120 P. 617; Offutt v. Wagoner, 30 Okla. 458, 120 P. 1018; Merchants' & Planters' Ins. Co. v. Crane, 36 Okla. 160, 128 P. 260; Shawnee-Tecumseh Traction Co. v. Wollard, 54 Okla. 432, 153 P. 1189.

¶4 Plaintiff assigns as error the overruling of its demurrer to the petition and amended petition. The original petition is based on the seventh ground of section 556, O. S. 1931, "for unavoidable casualty or misfortune preventing the party from prosecuting or defending." The amendment to the petition was based on the fourth ground of the same section, "for fraud, practiced by the successful party, in obtaining the judgment or order." Without setting out the petition fully, the material allegations as to unavoidable casualty or misfortune preventing the defendant from defending were that the suit was an action on a promissory note and for the foreclosure of a mortgage securing the same on the plaintiff's homestead. This defendant alleges that the land described in the plaintiff's petition and alleged by the plaintiff to secure the note sued upon herein by the plaintiff was allotted to this defendant by the United States government, and that said land at the time this suit was filed, and many years prior thereto, belonged to this defendant, and that said land at this time belongs to this defendant. That about the time the suit was filed, Luther Smith informed this defendant that the suit had been filed upon her land, and that he wanted the suit delayed as long as possible in order that he could get the oil play from an oil and gas lease upon said land, and that he had arranged with a certain law firm to represent her in this case, and that this defendant went to see said attorney of the law firm about this case, and that said attorney filed a motion to quash the service of summons for this defendant, and that thereafter, and on the 11th day of July, 1931, said motion was overruled and this defendant allowed 20 days in which to answer; that said attorney, without the knowledge and consent of this defendant, apparently withdrew from this case, and failed to plead further for this defendant, and failed to file an answer and set up the defense of this defendant, all of which was unknown to this defendant; that this defendant depended upon the statement of said attorney that he would look after the case for her and expected him to look after the case and represent her further, and was depending upon him to represent her and did not know that he was representing Luther Smith in the case, and that he apparently withdrew and permitted a default judgment to be entered against this defendant.

¶5 This defendant shows to the court that she has a good and valid defense to this cause of action and was prevented from interposing her defense to her cause of action by reason of the misfortune of her attorney withdrawing from the case and permitting a default judgment to be entered against her without any knowledge or fault upon her part. The defendant further pleaded that the note and mortgage sued upon were not signed by her and that the signatures were forgeries.

¶6 The amended petition adds the additional ground for fraud practiced by the plaintiff in obtaining the judgment; the allegations of the said petition alleging:

"Said fraud being that the plaintiff represented to this court that this defendant signed the note and mortgage upon which the plaintiff obtained the judgment, and that said representations by this plaintiff to this court were false and untrue, and that in truth and fact this defendant did not sign said note and mortgage sued upon herein, and that if her signature is attached to said note and mortgage the same is forgery."

¶7 Under the well-known rule that for the purpose of the demurrer the allegations of the petition are taken as true, we think the allegations of the petition and amended petition are sufficient to state a cause of action. The effect of the demurrer being to admit that the defendant was prevented from making a defense by the withdrawal of her attorney from the case without notice to her, and that the judgment was obtained by fraud upon a forged note and mortgage, and that she had a good defense to the foreclosure suit, which she pleaded in her petition, it was not error for the court to overrule the demurrer.

¶8 Plaintiff assign as error the order of the court vacating the judgment and granting the defendant 30 days to file an answer.

¶9 There was a decided conflict in the evidence. The testimony and exhibits cover nearly 200 pages of the record, and it would serve no useful purpose and extend this opinion to undue length to set out even the material portions of the evidence fully. The following brief statement indicates the character of the testimony: Minnie Liddell testified that she first learned about the mortgage on the land in 1930; that after the summons was served on her, she went to see an attorney, and he told her that he would see to it. The evidence shows that the attorney entered a special appearance and filed a motion to quash the summons and appeared two or three times in court and had the hearing on the motion continued, and it was finally overruled by the court. The attorney made no further appearance in the case. That Mrs. Liddell had no notice that her attorney abandoned the case.

¶10 Mrs. Liddell denied that the signatures to the application for a loan, the note and mortgage, were her signatures. There was evidence tending to show that she did not receive any of the proceeds of the loan; that the indorsement of her name on the check issued by the loan company was forged, and the proceeds deposited in a bank and checked out by D.V. Liddell, her husband; that all of the...