Wilson v. Porter, 11502.

• Court: Supreme Court of Oklahoma
• Writing for the Court: DICKSON, C.
• Citation: 221 P. 713,94 Okla. 259,1923 OK 1186
• Parties: WILSON ET AL. v. PORTER.
• Docket Number: 11502.
• Decision Date: 26 December 1923

221 P. 713

94 Okla. 259, 1923 OK 1186

WILSON ET AL.
v.
PORTER.

No. 11502.

Supreme Court of Oklahoma

December 26, 1923

Syllabus by the Court.

It is not a sufficient ground upon which to vacate a judgment that neither defendant nor his attorney of record was notified of the time that the case was set for trial.

An application to vacate or modify a judgment is addressed to the sound legal discretion of the court, and will not be disturbed on appeal, unless it clearly appears that the court has abused its discretion.

Commissioners' Opinion, Division No. 4.

Appeal from District Court, Mayes County; A. C. Brewster, Judge.

Action by Edwin F. Porter against H. L. Wilson and another. From an order denying a motion to vacate a default judgment, defendants appeal. Affirmed.

John G. Ellinghausen, of Sapulpa, and W. R. Banker, of Tahlequah, for plaintiffs in error.

Leahy & Brewster, of Muskogee, for defendant in error.

DICKSON, C.

On the 26th day of July, 1919, the defendant in error commenced an action in the district court of Mayes county against the plaintiffs in error, to recover damages for the destruction of an automobile. The parties will be referred to in this opinion as plaintiff and defendants, as they were designated in the trial court.

On the 19th day of August, 1919, the defendants [221 P. 714.] filed in said cause their motion for an order requiring the plaintiff to make his petition more definite and certain. On the 2d day of September, 1919, and during the regular September term of said court, said cause came on to be heard upon the defendants' motion to make more definite and certain. The plaintiff appearing by his attorney, and the defendants appearing neither in person nor by attorney, said motion was on said day overruled by the court, and the defendants given 10 days to answer.

On the 18th day of September, 1919, said cause came on regularly to be heard, and the plaintiff appearing in person and by his attorney, and the defendants neither appearing in person nor by attorney, and said defendants having failed to file an answer or other pleading to the plaintiff's petition, the case was tried to a jury, resulting in a verdict for the plaintiff in the sum of $1,500, and judgment was rendered accordingly.

On the 3d day of November, 1919, the defendants filed a motion in said cause to set aside the verdict and vacate the judgment. On the 1st day of January, 1920, said motion was presented to the court,...