Where the plaintiff recovers judgment against defendant in the county court of one county, he has a right thereafter to have the judgment recorded and entered in the judgment docket of the district clerk of another county.** A transcript of a judgment of a county court filed with the clerk of the district court of another county renders it a judgment of the latter court only for enforcement, and does not take control of the judgment from the court rendering it.50 § 1287. Record in realty case "When any part of real property, the subject matter of an action, is situated in any other county or counties than the one in which the action is brought, a certified copy of the judgment in such action must be recorded in the office of the register of deeds of such other county or counties, before it shall operate therein as notice, so as to charge third persons, as provided in the preceding section. It shall operate as such notice, without record, in the county where it is rendered." 51 § 1288. Recording "Any judgment or decree of a court of competent jurisdiction finding and adjudging the rights of any party to real estate or any interest therein, duly certified, may be filed for record and recorded in the office of the register of deeds, with like effect as a deed duly executed and acknowledged." "2 52 judgment by way of counterclaim, and that the sale thereunder operated to bar a sale of the land under the plaintiff's judgment. Davidson v. Beers, 25 P. 859, 45 Kan. 365. The practice of preparing and presenting journal entries to the judge for his signature is only in aid of the clerk, and, where the clerk accepts and records an entry prepared by counsel though not approved by the judge or adverse counsel, such entry, when recorded, becomes the judgment of the court, and on destruction of the journal such original entry, when identified, is a sufficient memorandum to authorize the court to direct the same entered of record to restore the judgment. Boynton v. Crockett, 69 P. 869, 12 Okl. 57. 49 Lowenstein v. Young, 57 P. 164, 8 Okl. 216. 50 Hudson v. Ely, 129 P. 11, 36 Okl. 576. 51 Rev. Laws 1910, § 4733. 52 Rev. Laws 1910, § 1177. Upon the rendition of a judgment in involuntary dissolution proceedings "against a corporation, the county attorney must cause a copy of the judgment to be filed forthwith in the office of the secretary of state, whose duty it shall be to record the same." 53 § 1290. Record as notice "When it is provided in this chapter that any order or decree of a county court or judge, or a copy thereof, must be recorded in the office of the county register of deeds, notice is imparted to all persons of the contents thereof, from the time of filing the same for record." 54 § 1291. Orders and decrees "Orders and decrees made by the county court, or the judge thereof, need not recite the existence of facts, or the performance of acts upon which the jurisdiction of the court or judge may depend, but it shall only be necessary that they contain the matters ordered or adjudged, except as otherwise provided in this chapter. All orders and decrees of the court or judge must be entered at length in the minute book of the court, and upon the close of each regular or special term the judge must sign the same. "Every direction of a court or judge made, or entered in writing, and not included in a judgment, is an order." 50 "Orders, made out of court, shall be forthwith entered by the clerk in the journal of the court, in the same manner as orders made in term.' 1957 "Judges of the district, superior and county courts shall, within their respective districts and counties, be authorized to hear and determine at chambers, motions to dissolve attachments and injunctions, and generally to exercise such supervisory control of the other officers and processes of their courts as to prevent abuses or oppression thereby or thereof." 58 53 Rev. Laws 1910, § 1277. 56 Rev. Laws 1910, § 5316. (1253) Sections 1292. Petition. ARTICLE V DEFAULT JUDGMENT DIVISION I.-REQUISITES AND VALIDITY 1293. When party is in default. 1294. Proof taken-Damages. 1295. Time for rendering judgment. 1296. Validity of judgment-Service-Form of judgment. 1297. Actions to which state is party-Dismissal-Default-Notice to Attor 1298. 1299. 1300. 1301. 1302. ney General. Notice-How given-Proof. Judgment without notice void. DIVISION II.-OPENING AND VACATING DEFAULT JUDGMENT Opening judgment after default on service by publication. Pleading-Form. 1303. Valid defense-Excuse-Petition-Effect of motion. 1304. Discretion of court. DIVISION I.-REQUISITES AND VALIDITY $1292. Petition A default judgment rendered on a petition which wholly fails to state a cause of action, is void; 59 but, where the court has jurisdiction of the person and subject-matter, a decree on default is not void if the petition contained allegations sufficient to challenge judicial examination.60 59 Clark v. Holmes, 31 Okl. 164, 120 P. 642, Ann. Cas. 1913D, 385. A complaint which states no cause of action will not support a judgment by default, and such judgment will be reversed in the appellate court. Farris v. Henderson, 33 P. 380, 1 Okl. 384; Lewis v. Clements, 95 P. 769, 21 Okl. 167. Where a petition in ejectment shows on its face that plaintiff has no title to the premises sued for, a judgment by default in his favor is erroneous, and will be reversed. Perry v. Snyder, 75 Okl. 24, 181 P. 147. 60 Hill v. Persinger, 57 Okl. 663, 157 P. 744. Where allegations of petition invoked action of court to determine its sufficiency, a judgment in such action by default against the defendant personally served will not be void. Gibson v. Dizney (Okl.) 178 P. 124. In action to quiet title, uncontroverted allegations of petition sufficient, under Code Civ. Proc. § 618 (Gen. St. 1909, § 6213), to entitle plaintiff to judg ment by default, where defendants do not appear. Seaton v. Escher, 121 P. 907, 86 Kan. 679. The only allegations fixed by a default judgment are those traversable, and issues cannot be joined on mere conclusions of law." § 1293. When party is in default 61 A party is not in default, though not present when the case is called for trial, so long as he has a pleading on file which makes an issue in the case that requires proof on the part of the opposite party in order to entitle him to recover; but he may appear and defend during the trial.62 He is not in default where he has on file and not disposed of any motion, demurrer, or answer, or other pleading which raises an issue of law or fact. But he may be 'held in default for failure to answer an amended petition filed without notice, where the amendment is filed in conformity with a ruling of the court on a motion by defendant; no notice being neces 63 61 International Harvester Co. of America v. Cameron, 105 P. 189, 25 Okl. 256. 62 Millikan v. Booth, 46 P. 489, 4 Okl. 713. Where an issue of fact was joined, though a default was entered for failure to appear when the cause was called for trial, a party was entitled as of right, on appearing at the trial at the close of the testimony of a witness, to cross-examine the witness. Millikan v. Booth, 46 P. 489, 4 Okl. 713. 63 Oklahoma State Bank of Cushing v. Buzzard, 61 Okl. 88, 160 P. 462. Where defendant, granted time to plead, filed a proper pleading presenting question of jurisdiction, a judgment by default without disposal of pleading is premature. Id. Before a judgment can be entered, the answer or other plea must be disposed of by way of motion, demurrer, or in some other manner. Where petition to recover on a foreign judgment showed that the cause of action was barred by limitations, an answer specifically set up such bar, but the court entered a purported default judgment and a trial was had, and the only evidence introduced was copies of the pleadings and the original judgment, held that, the defense being sufficient, it was reversible error to render judgment for plaintiff. Crossan v. Cooper, 137 P. 354, 41 Okl. 281. Judgment cannot be taken while motion made within time to plead is undisposed of, and not waived, unless its determination could not affect the rights of plaintiff. Atchison, T. & S. F. Ry. Co. v. Lambert, 121 P. 654, 31 Okl. 300, Ann. Cas. 1913E, 329. Where a motion to make a petition more definite and certain, not frivolous, has been filed by a party within the time to plead, and is pending undisposed of and not waived, a judgment on the pleadings cannot be taken against defendant. St. Louis & S. F. R. Co. v. Young, 130 P. 911, 35 Okl. 521. Where defendant appeared, filed demurrer, was present at final hearing, and joined in submitting cause to court, judgment was not by default. Chivers v. Board of Com'rs of Johnston County (Okl.) 161 P. 822, L. R. A. 1917B, 1296. sary in such case. However, where plaintiff, required to make his petition more definite and certain, merely amends by a slight interlineation and no docket entry is made showing filing of amended or refiling of original amended petition, and defendant has no notice of amendment, judgment against him for default of answer should not be entered.65 66 Where a case against two defendants is called, and one fails to appear and the other appears, and states that he has no defense, and the court hears plaintiff's evidence and renders judgment for him, it is not error to refuse to set aside the judgment, though there was an answer on file, and the record of the judgment states that defendants failed to appear and plead, and were adjudged in default. An action may be a joint action against all defendants, so as to require the court to refuse judgment against defaulting defendants on the defense pleaded by the others." If the defendant is given a fixed period within which to file an answer, his filing another pleading does not operate to extend the time.68 64 The defendant filed a motion to require the plaintiff to make his petition more definite. The court was then in session, and, though the term continued for some time, the motion was not called up. At the next term, in the absence of the defendant, the plaintiff called up the motion. The court sustained it, and required him to amend, which he did. At the second term, thereafter, the plaintiff took judgment by default. The order requiring the plaintiff to amend was noted by the judge on the motion docket, and by the clerk on his minute docket, but it was not entered on the journal. The defendant having moved to set aside the default, the order was entered on the journal nunc pro tunc, and the motion to set aside the default overruled. Code Civ. Proc. § 136, provides that the plaintiff may amend without leave at any time before answer, but notice of such amendment shall be served on the defendant or his attorney. Held, that notice of the amendment in this case 'was not required; that the nunc pro tune entry was properly made; and that the defendant was not entitled to have the default set aside. Cross v. Stevens, 25 P. 880, 45 Kan. 443. 65 Clark v. Spruens, 173 P. 275, 103 Kan. 218. 66 Galbraith v. Oklahoma State Bank, 130 P. 541, 36 Okl. 807. 67 McLeod v. Palmer, 150 P. 535, 96 Kan. 159. Action to recover interest in a decedent's estate held not such an action. Id. 68 Where defendant is authorized to file answer to pending cause within stated time, filing of motion to require plaintiff to permit copies of its records to be made does not extend time, and, if answer be not made within time, default may be taken. Harn v. Amazon Fire Ins. Co. (Okl.) 167 P. 473. |