Thompson v. Caddo Cnty. Bank
| Decision Date | 06 September 1905 |
| Citation | 15 Okla. 615,82 P. 927,1905 OK 89 |
| Parties | JAS. S. THOMPSON, B. W. HALL AND G. W. ZIMMERMAN. v. THE CADDO COUNTY BANK, a corporation. |
| Court | Oklahoma Supreme Court |
¶0 1. JUDGMENT--Vacation for Fraud--Proceedings. In this Territory, proceedings to vacate a judgment on the ground of fraud must be by petition, verified by affidavit, setting forth the judgment sought to be vacated, the grounds therefor, and the defense to the action, if the party applying was defendant.
2. SAME--Motion to Vacate for Fraud, Improper. A motion is not the proper method in this Territory by which to seek vacation of a judgment alleged to have been obtained by fraud.
3. SAME--Petition to Vacate--Must Contain, What. A petition to vacate a judgment on the ground of fraud of the successful party must be verified, and must set forth the judgment sought to be vacated, the facts constituting the alleged fraud, and must fully state the facts constituting the defense to the original action.
4. SAME--General Denial not Sufficient. A petition to vacate a judgment on the ground of fraud which sets up only a general denial by way of defense and does not state the facts constituting the same, is fatally defective.
5. REPLEVIN--Petition--Sufficient, When. Where, after personal service in an action of replevin, the only objection made to a petition is by motion to vacate a judgment rendered thereon by default, and the grounds relied upon for vacation of such judgment are that the special ownership of plaintiff and its right to the possession of the property at the commencement of the action are insufficiently pleaded, but the petition does set forth the specific facts constituting plaintiff's title, and to which the court will look in determining plaintiff's right to recover: Held, that in such a case, the allegations of such petition are sufficient: and Held, further, this court will not, upon a motion of the kind under consideration exact that strict particularity of pleading that might otherwise be required by a trial court, upon demurrer.
A. J. Morris, for plaintiffs in error.
A. T. Boys, and H. B. Mitchell, for defendant in error.
STATEMENT OF FACTS.
Defendant in error brought an action of replevin against plaintiffs in error, in the probate court of Caddo County, to recover certain property. Judgment was rendered by default, against defendants below, after personal service. No motion for new trial was filed, but, after the expiration of the time therefor, the defendants in that action, after notice to plaintiff, filed a motion to vacate the judgment, alleging: First, that the allegations of the petition and replevin affidavit are insufficient to sustain the judgment; and second, fraud practiced by the successful party in procuring the judgment. Later, a petition to vacate the judgment was filed by defendants, the sole ground therefor being fraud of the successful party. To this petition to vacate the judgment, plaintiff demurred; the demurrer was sustained, the court at the time of sustaining said demurrer, overruling the motion to vacate, and the plaintiffs in error bring the case here for review, assigning as error the action of the court in rendering judgment in the first instance, in overruling the motion to vacate, and in sustaining the demurrer to the petition.
Error from the Probate Court of Caddo County; before M. N. Gish, Probate Judge.
A. J. Morris, for plaintiffs in error.
A. T. Boys, and H. B. Mitchell, for defendant in error.
¶1 In this Territory proceedings to vacate a judgment on the ground of fraud practiced by the successful party must be by petition, verified by affidavit, setting forth the judgment sought to be vacated, the grounds therefor, and the defense to the action, if the party applying was defendant. (Sec. 564 art. 22, chap. 66, Wilson's Statutes, 1903.) Under the section of the statute referred to, a motion is not the proper remedy by which to seek vacation of a judgment alleged to have been obtained by the fraud of the successful party, that method by motion, being applicable only to certain other grounds specified in the statute; hence this court cannot consider so much of the motion in the case before us as seeks, upon the ground of fraud, the vacation of the judgment rendered.
¶2 Nor in this case is the petition to vacate sufficient to meet the requirements of the statute mentioned, and the construction which this court...
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Lindsey v. Goodman
...denial set out in the first paragraph of said answer is not sufficient to warrant a vacation of the judgment. Thompson et al. v. Caddo County Bank, 15 Okla. 615, 82 P. 927. ¶10 The allegation that the judgment was obtained by fraud of the plaintiff, as set forth in the second ground or para......
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State ex rel. Williams v. Smith
...21 Okla. 511, 96 P. 584; Foltz v. Deshon, 122 Okla. 42, 249 P. 358; Provins v. Lovi, 6 Okla. 94, 50 P. 81; Thompson et al. v. Caddo County Bank, 15 Okla. 615, 82 P. 927; Petros v. Fox-Vliet Drug Co., 138 Okla. 253, 280 P. 812; Tracy et al. v. State ex rel. Fancher, Co. Atty., 60 Okla. 109, ......
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