Vacuum Oil Co. v. Brett

• Decision Date: 21 April 1931
• Docket Number: 19416.
• Citation: 300 P. 632,150 Okla. 153,1931 OK 168
• Parties: VACUUM OIL CO. v. BRETT.
• Court: Oklahoma Supreme Court

300 P. 632

150 Okla. 153, 1931 OK 168

VACUUM OIL CO. v. BRETT.

No. 19416.

Supreme Court of Oklahoma.

April 21, 1931

Rehearing Denied June 30, 1931.

Syllabus by the Court.

That perjured testimony was given relative to issue tried is insufficient ground for vacating judgment; fraud which will authorize court to vacate judgment must be extrinsic and collateral to issues tried in case, and must prevent party from having trial of issues.

False evidence or perjury alone, relative to an issue tried, is not sufficient ground for vacating or setting aside a judgment the fraud which will authorize the court to vacate a judgment must be extrinsic or collateral to the issues tried in the cause wherein the judgment was rendered; it must be such fraud as to prevent the other from having a trial of the issues.

Demurrer to evidence admits all facts which evidence reasonably tends to establish and inferences reasonably drawn therefrom.

A demurrer to the evidence admits all the facts which the evidence reasonably tends to establish, and all the inferences and conclusions which may reasonably be drawn therefrom.

Petition to vacate judgment is addressed to trial court's discretion, and judgment will not be disturbed unless clear abuse of discretion appears; trial court's discretion on petition to vacate judgment should always be exercised to promote ends of justice; much stronger showing of abuse of discretion must be made where judgment has been set aside than where application to vacate judgment has been refused (Comp. St. 1921, § 810).

A petition to vacate a judgment, under section 810, C. O. S. 1921, is addressed to the sound legal discretion of the trial court, and the judgment will not be disturbed on appeal unless it clearly appears that the trial court has abused that discretion. Such discretion should always be exercised so as to promote the ends of justice, and a much stronger showing of abuse of discretion must be made where a judgment has been set aside than where it has been refused.

Appeal from District Court, Osage County; Jesse J. Worten, Judge.

Suit by the Vacuum Oil Company against George H. Brett and others. Judgment was entered for plaintiff, and later judgment was rendered in named defendant's favor vacating the first judgment, and plaintiff appeals.

Affirmed.

Superseding former opinion 294 P. 638.

Frank T. McCoy, of Pawhuska, William M. Taylor, of Tulsa, and John T. Craig, of Pawhuska, for plaintiff in error.

Holcombe, Lohman & Barney, of Pawhuska, and Maris & Maris, of Ponca City, for defendant in error.

ANDREWS, J.

The plaintiff in error instituted a suit in the district court of Osage county against the defendant in error and Orville H. Parker and Paul Parker. The action was to recover on a series of promissory notes signed by the two Parkers and on a written contract of guaranty signed by the defendant in error. The parties herein will hereinafter be referred to as plaintiff and defendant.

The defendant filed a verified general denial. In due course the cause was called for trial, the defendant therein defaulted, and judgment was rendered for the plaintiff on the 26th day of November, 1924, against the defendant for the amount of the notes given as evidence of the purchase price of the goods sold to the two Parkers, interest thereon, attorney's fees in the sum of $350, and costs.

On July 25, 1925, the defendant filed his petition to vacate the judgment. Thereafter an amended petition to vacate the judgment was filed. The plaintiff filed an answer questioning the jurisdiction and making a general denial of the allegations of the defendant's amended petition. The issue was tried to the court on December 6, 1927, and on that date the judgment was rendered by the trial court in favor of the defendant and against the plaintiff vacating the judgment. From that judgment an appeal was taken to this court.

The record shows that the written contract of guaranty on which the defendant was sued by the plaintiff was pleaded in the petition. Its execution was denied by the verified general denial of the defendant. The instrument was offered in evidence and the judgment against the defendant was based thereon.

It is contended by the defendant that his default at the trial in the first instance was occasioned by failure of the court clerk to notify his attorney of the setting of the case for trial; that the written contract of guaranty was never executed by him and was and is a forgery; that he had a valid defense to the action; and that he would have testified, had he been present, that he did not sign the written contract of guaranty. There was a further contention of newly discovered evidence.

The first proposition presented is whether or not, under subdivision 4, section 810, C. O. S. 1921, this judgment could have been vacated for fraud consisting of the introduction in evidence of the forged instrument and perjured testimony of the execution thereof.

The defendant relies on the decisions in two cases. Laithe v. McDonald, 7 Kan. 254, and El Reno Mutual Fire Insurance Co. v. Sutton, 41 Okl. 297, 137 P. 700, 50 L.R.A.(N.S.) 1064.

The Kansas case announces a rule that has never been followed in this state and is contrary to the uniform holding of this court. It is in nowise controlling.

El Reno Mutual Fire Insurance Co. v. Sutton, supra, has been repeatedly criticized by this court. It was explained in Scott v. Abraham, 60 Okl. 10, 159 P. 270, by pointing out that the fraud therein was extrinsic and collateral, that it did not involve the merits of the case as shown by the pleadings, and that it was not an issue inquired about in that case. It was distinguished and criticized in Missouri, K. & T. Ry. Co. v. Taylor, 69 Okl. 79, 170 P. 1148, 1154, in which it was said: " Even if we concede, for our present purpose, that the rule announced in that decision is good law, it has no application to the case before us."

In Thigpen v. Deutsch et al., 66 Okl. 19, 166 P. 901, it was held: " False evidence or perjury alone, relative to an issue tried, is not a sufficient ground for vacating or setting aside a judgment; the fraud which will authorize the court to vacate a judgment must be extrinsic or collateral to the issues tried in the cause wherein the attacked judgment was rendered; it must be such fraud of the prevailing party as to prevent the other from having a trial of the issues."

That was the holding in O'Brien et al. v. Van Arsdale-Osborne Brokerage Company, 80 Okl. 174, 194 P. 1083, 1084. Therein this court said:

" The cases of El Reno Mutual Fire Insurance Co. v. Sutton, 41 Okl. 297, 137 P. 700, 50 L.R.A.(N.S.) 1064, Laithe v. McDonald, 7 Kan. 254, and Davis et al. v. Jones (Tex.Civ.App.) 149 S.W. 727, are cited in support of plaintiff in error's contention, but El Reno Mutual Fire Insurance Co. v. Sutton, supra, is distinguished by this court in Scott v. Abraham, supra, and likewise Laithe v. McDonald, supra, is distinguished in note on page 166 of 25 Am. St. Rep.

" It is our opinion that the facts alleged in the petition herein are not sufficient to bring it within the apparent limitation of the general rule as announced in El Reno Mutual Fire Insurance Co. v. Sutton, supra, but that this case comes completely within the general rule."

In Clinton v. Miller, 96 Okl. 71, 216 P. 135, 136, this court refused to follow the decision and said: " That case presents an entirely different state of facts to the case at bar because the fraud of the plaintiff in removing from the state the goods which were covered by the fire insurance policy and in preparing the physical evidence of a loss by fire were matters extrinsic of the issues in the case and prevented the insurance company from having a real contest on the merits of the case; in other words, the false testimony was as to an extraneous fraud practiced by the prevailing party, which prevented the other from having a trial of the issue."

In McBride v. Cowan, 90 Okl. 130, 216 P. 104, 106, this court said: " Whether such authorities constitute exceptions to the general rule conceded above by plaintiff in error is unnecessary to decide, but from an examination of such authorities we find that none of them rest upon conditions anything like identical with the conditions upon which the...