$1301. Excusable default

96

A mistake in the printed docket, severe illness of defendant,"7 accidents for which defendant is not responsible,98 and unavoidable casualties and misfortunes" have been held to excuse defaults.

void, and thereby have the same set aside as to all parties. Wheatland Grain & Lumber Co. v. Dowden, 110 P. 898, 26 Okl. 441.

96 Where answer presents good defense, and failure of nonresident defendant to answer in time is excused by notation on printed docket indicating postponement of term of court, default judgment should be opened. McSpadden v. Richardson, 59 Okl. 124, 157 P. 1153.

97 Severe illness on the day of trial, so as to confine a party to his house, is ground for setting aside the judgment rendered against him. Gheer v. Huber, 4 P. 290, 32 Kan. 319.

98 Defendant,, in another than the trial county, deposited in the United States post office, postage paid, an envelope addressed to the clerk of the court, containing a motion directed to plaintiff's petition. In due course of mail the motion would have reached its destination by the answer day, but because of a miscarriage of the mail arrived a day late, and while the case was on trial. Held, that the court erred in denying defendant the right to file the motion and be heard upon it, and in proceeding to render default judgment. Chicago, K. I. & P. Ry. Co. v. Reese, 110 P. 1071, 26 Okl. 613.

On the day before answer was due, defendant's counsel deposited in the mail in another county a motion directed to plaintiff's petition. In due and regular course of mail the motion would have reached its destination in time, but by reason of the miscarriage of the mail it arrived one day late. It actually arrived during the taking of the evidence as on defendant's default and prior to the rendition of judgment. Counsel for defendant prior to the conclusion of the trial asked leave to file the motion, which the court denied and rendered judgment as on default. Held that, since the failure to file the motion in time resulted from a mere accident for which defendant was in no way responsible, the court's refusal to permit the filing thereof when received and to give defendant its day in court was an improper exercise of discretion for which the judgment would be set aside. Chicago, R. I. & P. Ry. Co. v. Eastham, 110 P. 887, 26 Okl. 605, 30 L. R. A. (N. S.) 740.

99 Petitioner's counsel from Wichita, Kan., wrote the clerk of the court in which the case was pending at Hobart, Okl., requesting advice of the day the case had been set for trial, on May 13, 1907, which was the day court convened for the term. Receiving no reply on the 15th or 16th, petitioner received a letter from a third person, advising him that the case would be reached the latter part of the next week. Petitioner immediately wired his informant to wire him the day the case was set for trial, and on the 18th received a telegram "Your case is set for the first." Petitioner took the letter to his attorney in Wichita, and they, construing it to mean "June 1st," prepared for trial on that day. On May 23d petitioner received a letter from his informant that judgment had been rendered against him by default on the 21st, and an investigation showed that the telegram as filed stated that the case had been set for "the 21st," and that a mistake had occurred in transmission, which caused the default. Held, that, petitioner and his counsel having exercised ordinary diligence, petitioner was entitled to have the de

A judgment will not be vacated on the ground that unavoidable casualty prevented appearance, unless the facts alleged show that no reasonable diligence could have prevented trial or judgment, and that one petitioning for vacation was not guilty of laches.1

That defendant's attorney was absent from his office and understood that cause would not be assigned for trial at certain term was not sufficient to authorize vacation of default judgment after term had expired.2

It is not sufficient ground upon which to vacate default judgment that plaintiffs or their attorneys were not notified by clerk of time that case was set for trial.

fault vacated for unavoidable casualty or misfortune. McLaughlin v. Nettleton, 105 P. 662, 25 Okl. 319.

In an action to vacate a default judgment it appeared that defendant, with his family, left the state a few days before summons was served at his residence, on a vacation which lasted several weeks; that neither he nor his family knew of the commencement of the action until he was requested to pay the judgment: that the note on which the judgment was rendered was not signed by him individually, and that he did not know that he was to be held personally thereon. Held, that he was precluded from defending the action through unavoidable casualty or misfortune, within Gen. St. 1889, par. 4669, subd. 7, and the judgment was hence properly vacated. Schnitzler v. Fourth Nat. Bank, 42 P. 496, 1 Kan. App. 674.

Refusal to vacate default judgment for negligence of agent of defendant corporation in misplacing copy of summons and not notifying defendant of service held not an abuse of discretion; such negligence not being "unavoidable casualty or misfortune," etc., within Rev. Laws 1910, § 5267, subd. 7. Missouri, K. & T. Ry. Co. v. Ellis, 53 Okl. 264, 156 P. 226, L. R. A. 1916E, 100. Under Rev. Laws 1910, § 5267, defendants' attorney abandoning the case without notice held unavoidable casualty, and ground for setting aside a de fault judgment. McLaughlin v. Nettleton, 47 Okl. 407, 148 P. 987.

The negligence of an attorney in unnecessarily permitting a judgment by default to be rendered against his client, and the fact that such attorney is insolvent, cannot be considered, generally, such an "unavoidable casualty or misfortune" (Code, § 568) as entitles the client to be let in to defend. Welch v. Challen, 3 P. 314, 31 Kan, 696.

1 Baker v. Hunt & Co. (Okl.) 166 P. 891.

2 Continental Gin Co. v. Arnold (Okl.) 167 P. 613, L. R. A. 1918B, 511. 8 Baker v. Hunt & Co. (Okl.) 166 P. 891; Uncle Sam Oil Co. v. Richards (Okl.) 176 P. 240.

Where default is taken, answer not being filed within time, it is no ground upon which to vacate default that defendant's attorney was informed by clerk of court that contested motions would not be heard on day such judg ment was rendered, as, in absence of answer, no contest was pending against motion for default judgment. Harn v. Amazon Fire Ins. Co. (Okl.) 167 P. 473. Where a party or his counsel writes letters to clerk of court inquiring

While a judgment may be vacated and a new trial had for fraud. practiced by the successful party in obtaining it, it is such fraud as is collateral and extrinsic to the issues involved in the action and on which the judgment was founded, and the party against whom judgment in default is rendered is not entitled to have it set aside and the issues retried because the allegations in the petition which constitute the merits of the case are untrue.*

The fraud relied on must be clearly stated and shown, and must be unmixed with fraud or negligence of the complaining party.

about status of a case, and, though receiving no reply, allows two months to pass without further inquiry, and a default is entered, he cannot attack default for neglect or omission of clerk. Pulaski Oil Co. v. Conner, 62 Okl. 211, 162 P. 464, L. R. A. 1917C, 1190.

That after a member of the plaintiff partnership has agreed to continue the cause and later have it dismissed à default judgment is taken in defendant's absence does not render the judgment void. Ponca Milling Co. v. Stevens, 147 P. 815, 94 Kan. 745.

Petition held not to state facts sufficient to justify vacation of judgment on ground of fraud practiced by successful party in obtaining judgment. Citizens' Bank & Trust Co. v. City of Pryor Creek (Okl.) 168 P. 208.

Under Wilson's Rev. & Ann. St. 1903, § 4760, authorizing district courts to vacate a judgment where fraud is practiced in obtaining it, where a defendant waives service of summons, and has full opportunity to make any proper defense, but neglects to appear, such negligence is no ground for setting aside the judgment. Williamson v. Williamson, 83 P. 718, 15 Okl. 680. 4 Garrett Biblical Institute v. Minard, 108 P. 80, 82 Kan. 338.

It is not fraud under Code Civ. Proc. § 596 (Gen. St. 1915, § 7500) practiced by successful party for plaintiff to sue on note and mortgage defective for want of signature of defendant's wife, nor to obtain judgment thereon by default. Gooden v. Lewis, 101 Kan. 482, 167 P. 1133. Under Code Civ. Proc. § 596 (Gen. St. 1915, § 7500), attachment affidavit is not fraudulent so as to vitiate proceedings pursuant thereto merely because if attachment had been resisted it might have been shown that allegations of affidavit were false. Id. When fraud practiced by successful party to judgment is alleged, facts showing such fraud must be stated clearly and concisely, and fraudulent acts and proceedings must be clearly shown. Lindsey v. Goodman, 57 Okl. 408, 157 P. 344. Facts showing unavoidable casualty or misfortune as ground for vacation of judgment must be so stated as to make it appear that no reasonable diligence could have prevented trial or judgment, and that complaining party is not guilty of laches. Id.

Affidavits. A petition to vacate a judgment for unavoidable casualty or misfortune, preventing a party from prosecuting or defending, must be veri

6 Fraud of prevailing party alleged to have prevented presentation of defense relied upon to vacate judgment must be unmixed with fraud or negligence of petitioner or his agent. Citizens' Bank & Trust Co. v. City of Pryor Creek (Okl.) 168 P. 208.

Neither ignorance, mistake, nor misapprehension of an attorney not occasioned by the adverse party is ground for vacating a judg

ment."

§ 1302. Pleading-Form

A default judgment, having been duly rendered and entered of record, and the term at which it was rendered having passed, can be vacated or set aside only at the times and in the manner provided by law.8

A judgment regular upon its face rendered by default and upon publication service in an action where such service is authorized, after the adjournment of the term, is not subject to attack by motion supported by affidavit upon the ground of falsity of the affidavit for publication.

Where a default judgment is rendered without summons or upon fatally defective process, defendant, during that term, may appear by motion and have the judgment vacated on that ground.1o

10

But a default judgment which is not void cannot be set aside on motion at a subsequent term five years after rendition on the ground that the petition did not state a cause of action.11

fied by affidavit setting forth the judgment or order, the grounds for vacating or modifying the same, or the defense or defenses to the action. McLaughlin v. Nettleton, 105 P. 662, 25 Okl. 319.

An application to open a judgment obtained by publication service held not void merely because the supporting affidavit was verified by defendant's at torney on information and belief, where it recited all the facts prescribed by Civ. Code, § 83 (Gen. St. 1909, § 5676). Young v. Martin, 153 P. 542, 96 Kan, 748. Where an application to open a judgment obtained by publication of service, and the supporting affidavit, verified on information and belief, are filed within time, the affidavit may be amended by a positive verification after the time to open the judgment would otherwise have expired. Id. 7 Lindsey v. Goodman, 57 Okl. 408, 157 P. 344.

For statute, see post, § 1305.

8 Johnson v. Jones, 51 P. 224, 58 Kan. 745,

If a final decree or judgment is rendered and the term expires, there must be a substantial compliance with the statute in order to give the court further jurisdiction over the decree or judgment. Arnold v. Burks, 63 Okl. 273, 164 P. 970.

9 Lausten v. Union Nat. Bank of Bartlesville (Okl.) 173 P. 823. 10 Fried v. First Nat. Bank (Okl.) 176 P. 909.

Where, on default, a judgment is rendered which is void for want of ju risdiction of the person, it should be set aside on motion; defendant making a special appearance for that purpose only. Foster v. Cimarron Valley Bank, 76 P. 145, 14 Okl. 24.

11 Gibson v. Dizney (Okl.) 178 P. 124.

On a motion to vacate a judgment by default, the court will not exact that strict particularity of pleading in the original action that might otherwise be required on demurrer.12

A motion to quash service by publication and set aside a default judgment at the same term because of falsity of the affidavit for publication may be granted, though it does not show that movant has any defense or statutory ground for the motion. 13

Where a motion is filed to set aside a default judgment and plaintiff appears and contests the motion on nonjurisdictional grounds, service of notice of the motion is waived.14

On filing a petition to open judgment, no new summons need. be issued to a defendant who has permitted the judgment to be taken against him by default.15

APPLICATION FOR OPENING DEFAULT JUDGMENT ON SERVICE BY PUBLICATION

C. D., of lawful age, being first duly sworn, on oath says: That he is the defendant in the above entitled action; that on the day of 19, judgment was entered in this cause against said defendant, by default, in favor of the plaintiff, A. B., for the sum of $ —; that no service was ever had upon this defendant in said cause other than by publication in a newspaper; that during the pendency of said action your affiant had no actual notice. thereof in time to appear in court and make his defense, nor did he ever have any personal knowledge of the same prior to the rendition of said judgment; that your affiant has a good and valid defense to the cause of action alleged in the plaintiff's petition herein, and that he submits and files herewith a full answer to said petition; that your affiant offers to pay all costs accrued in this cause if the court require them to be paid.

Wherefore affiant moves the court to open the judgment herein,

12 Thompson v. Caddo County Bank, 82 P. 927, 15 Okl. 615.

13 Richardson v. Howard, 51 Okl. 240, 151 P. 887.

14 Cahill-Swift Mfg. Co. v. Hayes, 156 P. 735, 97 Kan. 740, rehearing denied 157 P. 1169, 98 Kan. 269.

15 Wetmore State Bank v. Courter, 155 P. 27, 97 Kan. 178.