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and that he be let in to defend against the cause of action alleged in plaintiff's petition. (Jurat.)

C. D.

§ 1303. Valid defense-Excuse-Petition-Effect of motion To vacate a default judgment rendered on a petition stating a cause of action on which legal summons had been served the defendant must show a valid defense.16

16 Harn v. Amazon Fire Ins. Co. (Okl.) 167 P. 473.

A petition under Code Civ. Proc. § 600 (Gen. St. 1909, § 6195), after expiration of the term, on the ground that the judgment was taken contrary to an agreement between counsel, held insufficient, where it failed to set forth the judgment and facts showing a valid defense. State v. Soffietti, 136 P. 260, 90 Kan. 742.

A defendant in an action to foreclose liens of material men and mechanics, who is personally served with summons, and allows judgments to go against him by default, is not entitled, nearly six months thereafter, and at a subsequent term of the court, and after the property has been sold at sheriff's sale, to have the judgments vacated, on motion or petition, without show. ing that he has a defense to the whole or a part of the action in which the judgments are rendered. Coffey v. Carter, 27 P. 128, 47 Kan. 22.

Full answer.-An answer filed with an application to open a judgment in a suit to quiet title, which expressly denies the facts pleaded in the petition, is a "full answer," within Code Civ. Proc. § 83 (Gen. St. 1915, § 6974), relating to opening of defaults. Wyatt v. Collins, 105 Kan. 182, 180 P. 789.

Gen. St. 1897, c. 95, § 78, provides that judgments rendered on notice by publication may be set aside by pursuing a certain procedure, which includes the filing of a full answer. On an application to set aside a judgment canceling a mortgage, the answer so filed contained a general denial, and allegations that the mortgage was made to secure a loan, made by a building and loan company of which defendant was a receiver, and that it was to be paid in monthly installments, and that it was partially paid, but that there was $1,000 due and unpaid. Held, that the answer was sufficient as a defense and that it was error to refuse to open up the judgment, the statute being complied with in other respects. Hale v. Hoagland, 61 P. 314, 9 Kan. App. 885.

Issues and petition.-Where default is rendered upon petition against an oil and gas lessee for injuries to surface rights, held that, where petition alleged plaintiff's sole ownership, and there was nothing contrary in record, it will be presumed that issue of ownership was determined by default judg ment, and it cannot be set aside for defects of parties. Pulaski Oil Co. v. Conner, 62 Okl. 211, 162 P. 464, L. R. A. 1917C, 1190.

Where the record showed a finding, on argument and consideration, that a motion to set aside a default judgment should be sustained, this implied that adjudication of a valid cause of action which is essential to the right to set aside a judgment under Code Civ. Proc. §§ 596, 602 (Gen. St. 1909, §§ 6191, 6197). Spottsville v. Western States Portland Cement Co., 146 P. 356, 91 Kan. 258.

But a default judgment will not be vacated unless it appears that the party having a meritorious defense was prevented from making timely presentation thereof on some grounds named by the statute for granting such relief.17

Where judgment on default is wholly without the pleadings or within supplemental pleadings filed without notice, substantially changing the original claim, judgment may be set aside by any person affected without showing a valid defense to the action.18

A general denial in a proffered answer attached to a motion to set aside the judgment is not sufficient to warrant vacation of the judgment.19

A motion to set aside a default judgment does not suspend the effect of the judgment.20

Where defendants have allowed judgment to be taken by default, and afterwards make a general appearance, it is too late to object to the judgment because the petition upon which it was rendered contains more than one cause of action, not separately stated and numbered, or that the judgment ought not to have been against part of the defendants as principals, but only as sureties.21

§ 1304. Discretion of court

An application to vacate or modify a judgment is addressed to the discretion of the court,22 but such discretion must be exercised without abuse.2 23

17 Western Coal & Mining Co. v. Green, 64 Okl. 53, 166 P. 154.

18 Hirschman v. Forster, 59 Okl. 178, 158 P. 1177.

19 Lindsey v. Goodman, 57 Okl. 408, 157 P. 344.

20 Price & Miller v. Ratcliffe, 47 Okl. 370, 148 P. 153.

21 Kaw Valley Life Ass'n v. Lemke, 19 P. 337, 40 Kan. 142, judgment affirmed 20 P. 512, 40 Kan. 661.

22 Stainbrook v. Meskill, 52 Okl. 196, 152 P. 820.

A trial court has a wide discretion in setting aside judgments and decrees rendered in its own court when it does so at the same term at which it is rendered. Arnold v. Burks, 63 Okl. 273, 164 P. 970.

Where a default judgment had been opened at the instance of parties who have a valid defense, Gen. St. 1915, § 6974 (Code Civ. Proc. § 83), relating to procedure, should receive a liberal construction. Wyatt v. Collins, 105 Kan. 182, 180 P. 992.

A trial court may, in the exercise of its discretion, set aside a judgment rendered in the absence of defendant, and allow a new trial, especially where the application immediately follows the rendition of the judgment, though 23 See note 23 on following page.

Unless a default is caused by the gross laches of defendant's attorney, he should be permitted to answer on terms at any time be

the showing in support of the motion, and the motion, are not strictly in conformity with the provisions of the statute. Wilson & Toms Inv. Co. v. Hillyer, 31 P. 1064, 50 Kan. 446; Id., 31 P. 1065, 50 Kan. 448.

A default judgment against abstractors was properly set aside, where it included the amount of a lien not disclosed by the abstract, but previously held invalid by a final judgment of which plaintiff alone knew. Walker v. Bowman, 44 Okl. 759, 145 P. 1130.

23 Evidence held to show that a refusal to set aside a default judgment was an abuse of discretion, where it appeared that both defendant and his attorney were too sick to attend court when the judgment was rendered, and that defendant had a meritorious defense. Stainbrook v. Meskill, 52 Okl. 196, 152 P. 820.

Where the president of a defendant board of education, who alone was served with summons, forgot to notify the board of the service, as a result of which a default judgment was entered for plaintiff, and the defendant board, at the term at which judgment was rendered, moved to vacate the same, supporting its motion by affidavit, and tendered a verified answer showing a complete defense, it was an abuse of discretion to refuse to vacate the default. Board of Education of City of Hutchinson v. National Bank of Commerce, 46 P. 36, 4 Kan. App. 438.

Refusal to open a default judgment held an abuse of discretion, where the defendant showed a reasonable excuse for his absence, and presented a good defense, and no substantial prejudice would result from sustaining the motion. Hodges v. Alexander, 44 Okl. 598, 145 P. 809.

Evidence held to support a finding that defendant had actual notice of pendency of an action in time to appear and make defense, so that a default will not be set aside. Garrett Biblical Institute v. Minard, 100 P. 55, 79 Kan. 470.

A defendant who applies to the court within a few days after the time for answer has expired, and before judgment is rendered against him by default, for leave to file an answer, and is told by the court that the case would not be reached at that term, and that time would be given him to answer, and in a few days thereafter a judgment is rendered against him, and an execution issued thereon, is entitled on a proper showing, and such terms as may be just, to have the judgment set aside, and leave given him to file an answer, and have the case tried on its merits. Sanders v. Hall, 15 P. 197, 37 Kan. 271.

Overruling motion to set aside judgment rendered in absence of defendant's attorney and denying a new trial held erroneous, although absence was occasioned by attorney's negligence. Patterson v. Uncle Sam Oil Co.. 165 P. 661, 101 Kan. 40.

It being apparent that the omission of parties to plead to a cross-petition, or to appear and defend, was not intentional, they should be granted a new trial. Johnson v. Ware, 73 P. 99, 67 Kan. 840.

Defendants having, after dilatory motions carrying the case over a term, withdrawn the motions and obtained permission to answer in 20 days, and then obtained an extension of 20 days for answer, "not to delay trial" at the next term, and then made no further appearance until judgment was entered

fore judgment; and where a meritorious defense is apparent the court must permit the answer to be filed.24

at such term, were guilty of such negligence as to justify refusal to set aside the judgment. Lawson v. Rush, 101 P. 1009, 80 Kan. 262.

Where, on a petition for a new trial after judgment by default, it appeared that defendants did not know when the case was set for trial, though they knew of its pendency, and that their attorneys knew of the setting, and one defendant claimed that a year or so previously plaintiff's attorney had led him to believe he did not desire a judgment against him, the petition was properly denied. Bigsby v. Eppstein, 39 Okl. 466, 135 P. 934.

An action was brought in W. county against the maker and guarantor of two notes. Personal service was had on the guarantor in W. county and on the maker in F. county, where they respectively resided, and judgment by default was rendered against the maker alone. Thereafter the maker moved to vacate the judgment, alleging that the guarantor was induced to indorse the notes solely to permit the action to be brought away from the maker's residence, and the judgment was vacated accordingly. During the next term judgment was rendered against both defendants, without the appearance of either. Held, that the maker's motion to vacate the latter judgment, as against him for want of jurisdiction, was properly overruled. Minnick v. Matchett, 63 P. 276, 10 Kan. App. 177.

Pending hearing of a motion to vacate a judgment by default on constructive service, plaintiff on leave filed amended proof of publication showing notice of pendency of the action was published for the required time, though the proof of publication originally filed showed that it had not been made for the requisite time. Held, that the amended proof was properly allowed, and, due publication having been shown, the motion to vacate the judgment should have been overruled. Morris v. Hardie, 113 P. 308, 84 Kan. 9.

The fact that one moving, under Code Civ. Proc. § 83 (Gen. St. 1909, § 5676), to open up a judgment may have challenged the validity of the service and the jurisdiction to render any judgment will not justify denial of his application to have the judgment opened. Board of Com'rs of Cheyenne County v. Walter, 112 P. 599, 83 Kan. 743.

Default judgment, in action on coupons clipped from school district bond, cannot be set aside for misunderstanding of defendant as to whether the action involved outlawed coupons. Vail v. School Dist. No. 1, Grant County, 122 P. 885, 86 Kan. 808.

24 St. Louis & S. F. R. Co. v. Zumwalt, 31 Okl. 159, 120 P. 640.

After a default judgment has been opened it is within court's discretion to permit an amended answer to be filed. Wyatt v. Collins, 105 Kan. 182, 180 P. 789.

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DIVISION I.-AUTHORITY TO REVIEW

1305. Jurisdiction and power

"The district court shall have power to vacate or modify its own judgments or orders, at or after the term at which such judgment or order was made

"First. By granting a new trial for the cause, within the time and in the manner prescribed in section 5035.

"Second. By a new trial granted in proceedings against defendants constructively summoned, as provided in section 4728. "Third. For mistake, neglect or omission of the clerk, or irregularity in obtaining a judgment or order.25

25 Irregularities in the proceedings in a suit on notes and to foreclose a mortgage held to authorize the court to vacate the judgment on timely motion filed therefor under Rev. Laws 1910, § 5274. Griffin v. Jones, 45 Okl. 305, 147 P. 1024.

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