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"Fourth. For fraud, practiced by the successful party, in obtaining the judgment or order.

"Fifth. For erroneous proceedings against an infant, or a person of unsound mind, where the condition of such defendant does not appear in the record, nor the error in the proceedings.2

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"Sixth. For the death of one of the parties before the judgment in the action.

"Seventh. For unavoidable casualty or misfortune, preventing the party from prosecuting or defending.

"Eighth. For errors in a judgment, shown by an infant in twelve months after arriving at full age, as prescribed in section 5142. "Ninth. For taking judgments upon warrants of attorney for more than was due to the plaintiff, when the defendant was not summoned or otherwise legally notified of the time and place of taking such judgment." 27

To justify vacation, a substantial compliance with the statute must appear.28

An "irregularity," within the statute, is some departure from prescribed procedure in the trial or in the determination of an action which is not evidenced by ruling or order.2

The jurisdiction to set aside judgments of county courts, fraudulently obtained, is possessed by the district and superior courts.30 The district court of a county in which a transcript of a judgment from another county has been filed does not have authority to vacate the judgment if the judgment is regular on its face and within the jurisdiction of the court that rendered it.31

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26 Rev. Laws 1910, § 5267, subd. 5, giving the district court power to revoke or modify its own judgments for erroneous proceedings against an infant, where the infancy and the error do not appear on the record, does not authorize action when the errors do appear on the record. Sawyer v. Ware, 128 P. 273, 36 Okl. 139.

27 Rev. Laws 1910, § 5267.

Comp. Laws 1909, § 6094, subd. 8, authorizing the district court to vacate or modify its own judgments, for errors shown by an infant within 12 months after arrival at full age, as prescribed by section 5935, does not authorize the district court in an original proceeding to correct errors of record which may be corrected by direct appeal. Sawyer v. Ware, 128 P. 273, 36 Okl. 139. 28 Allen v. Gaston (Okl.) 189 P. 183.

29 Hatfield v. Hatfield, 59 Okl. 132, 158 P. 942.

30 In re Johnson (Okl.) 179 P. 605; Wray v. Howard, 79 Okl. 223, 192 P. 584. 81 Code Civ. Proc. § 432 (St. 1893, § 4310), as amended by Comp. Laws 1909,

A motion for vacation of a judgment rendered without service of process is exclusive of relief in equity.32

An application to amend or correct a judgment is addressed to the sound discretion of the court wherein it was entered.33

Thus the court may act on any evidence satisfactory to it, and it is for it to decide the kind and amount of evidence requisite to show that an amendment should be made, though, where there is no record or quasi record evidence, it should act with great caution.34

The amendment of a mistake in entry of judgment or order may be based on any competent evidence, parol as well as written; 35 hence a district court, on the personal knowledge of the judge as to what took place at the time of its rendition, can correct the entry of a judgment, so as to cause it to speak the truth, after the expiration of the term at which it was rendered.36

Where there is a denial of a motion under the statute upon reasonable notice to the adverse party or his attorney, in a proceeding to correct a mistake or omission of the clerk or irregularity in obtaining a judgment, the remedy of the party aggrieved is not by renewing it, or asking for a rehearing thereof, but by appeal.**

An order of revivor, made on an unauthorized waiver of notice and consent to the revivor by an attorney, under a misapprehension as to his authority to appear in the matter, may be set aside on motion by the district court.3

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§ 5941, considered in connection with Comp. Laws 1909, § 540, giving to judg ment creditors the right to have transcripts of judgments filed in counties other than wherein rendered, does not give to the district court of the latter counties jurisdiction to vacate the judgment, where regular on its face and within the jurisdiction of the court rendering it. Hudson v. Ely, 129 P. 11, 36 Okl. 576.

32 Pettis v. Johnston, 78 Okl. 277, 190 P. 681.

33 Co-wok-ochee v. Chapman, 76 Okl. 1, 183 P. 610. An order of county court overruling a motion, filed after the term, to correct entry of a judgment formerly entered therein, held not an abuse of county court's discretion. Id.

34. Co-wok-ochee v. Chapman, 76 Okl. 1, 183 P. 610. Evidence in district court held not to have sufficient weight and cogency to warrant a reversal of county court's overruling of a motion, filed after term, to correct entry of a judgment formerly entered in that court.

35 Jones v. Gallagher, 64 Okl. 41, 166 P. 204, 10 A. L. R. 518.

36 Christisen v. Bartlett, 84 P. 530, 73 Kan. 401, rehearing denied 85 P. 594, 73 Kan. 401.

37 Co-wok-ochee v. Chapman, 76 Okl. 1, 183 P. 610.

38 Mendenhall v. Robinson, 44 P. 610, 56 Kan. 633.

The court may vacate a judgment on the pleadings for misapprehension as to their allegations.39

Perjury alone is not sufficient ground for vacating a judgment.1o Fraud will authorize vacation, but it must be extrinsic or collateral to the issues, thereby preventing a party from having a trial thereon.41

However, obtaining a judgment by willful perjury is obtaining it by fraud, and where the unsuccessful party has been prevented by fraud and perjury from exhibiting fully his case, and there has never been a real contest, the judgment may be set aside.12

An attorney acting for his client is bound to the most scrupulous good faith, and, if he corruptly sells out his client's interest to the other side the judgment may be set aside for fraud.13

After trial and verdict, motion for new trial, and judgment, a proceeding should not be disturbed and litigation reopened except

39 Cooper v. Rhea, 107 P. 799, 82 Kan. 109, 29 L. R. A. (N. S.) 930, 136 Am. St. Rep. 100, 20 Ann. Cas. 42.

40 Electric Plaster Co. v. Blue Rapids City Tp., 106 P. 1079, 81 Kan. 730, 25 L. R. A. (N. S.) 1237; Thigpen v. Deutsch (Okl.) 166 P. 901.

Before a judgment rendered on perjured testimony will be vacated under Rev. Laws 1910, § 5267, it must appear that the injured party has presented the matter with due diligence, and is clearly entitled to the relief sought, that the question of perjury could not have been litigated at the trial, or the relief sought obtained therein by the use of due diligence. El Reno Mut. Fire Ins. Co. v. Sutton, 137 P. 700, 41 Okl. 297, 50 L. R. A. (N. S.) 1064. 41 Thigpen v. Deutsch (Okl.) 166 P. 901.

A judgment procured by false or perjured testimony is not open to a direct attack on that ground, when the testimony relates to an issue raised by the pleadings and tried out at the hearing. McCormick v. McCormick, 107 P. 546, 82 Kan. 31.

42 Where plaintiff had removed the insured goods from the state before the fire, and recovered on her testimony that they had been burned, and the defendant, relying on plaintiff's allegations, sought only to minimize the amount of plaintiff's loss, plaintiff's perjured testimony constituted a fraud authoriz. ing vacation of the judgment under Rev. Laws 1910, § 5267, subd. 4. El Reno Mut. Fire Ins. Co. v. Sutton, 137 P. 700, 41 Okl. 297, 50 L. R. A. (N. S.) 1064. 43 Haverty v. Haverty, 11 P. 364, 35 Kan. 438.

If a plaintiff is guilty of so influencing the attorney of the defendant, by the payment of money, without the knowledge or consent of his client, as to make it the interest of the attorney that plaintiff should obtain a judgment against his client, and such attorney, in the absence of his client, does not make any resistance to the rendition of the judgment in favor of the plaintiff, the judgment may be set aside. Haverty v. Haverty, 11 P. 364, 35 Kan, 438.

on a clear showing that rights of the defeated party have been lost by unavoidable casualty or misfortune.**

A party seeking to vacate a judgment for unavoidable casualty or misfortune must show that he is not himself negligent in permitting the default and that no reasonable diligence could have prevented the trial or judgment.45

A judgment will not be vacated because the defendant or his attorney was not notified of the time the case was set for trial.** The negligence of the attorney cannot be considered such un

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

Where a party and his attorney are absent at time set for hearing cause, because of unavoidable casualty, an adverse judgment should be set aside on proper terms as to costs and another trial had, when casualty is duly shown to court, together with showing of meritorious cause of action or defense. Cohen v. Cochran Grocery Co. (Okl.) 173 P. 642.

45 Forest v. Appelget, 55 Okl. 515, 154 P. 1129; Gooden v. Lewis, 101 Kan. 482, 167 P. 1133.

An application and affidavits for a continuance were received by mail on the same day a case was assigned for trial, but after a judgment had been rendered, in the absence of defendants, and it appeared that the term of court convened on the first Monday in September, and the case was assigned for trial on the 24th day of that month. Held, that while the showing was sufficient to have entitled defendants to a continuance, if presented in proper time, they did not exercise due diligence in presenting such application, especially when the cause for a continuance was known at or near the commencement of the term of court; and the court did not abuse its discretion in refusing to grant defendants a new trial. Knauber v. Watson, 32 P. 349, 50 Kan. 702.

Where judgment has been rendered against a defendant, and after its rendition, and at the same term, a motion for a new trial is granted, conditioned that defendant shall pay the costs then accrued, and the defendant gives the money to her attorney, with directions to pay the costs, and such attorney fails to pay the same within the time fixed by the court, and the judgment be comes final, and afterwards a petition is filed to vacate such judgment under section 588 of our Code of Civil Procedure, held, the negligence of the attorney cannot be considered such unavoidable casualty or misfortune as prevented the party from defending, and that a demurrer to such petition was properly sustained by the trial court. Wynn v. Frost, 50 P. 184, 6 Okl. 89.

Allegations in petition to vacate judgment held not to show unavoidable casualty or misfortune preventing party from defending within Code Civ. Proc. § 596 (Gen. St. 1915, § 7500), relating to district court's power to vacate judgment. Gooden v. Lewis, 101 Kan. 482, 167 P. 1133.

46 Tracy v. State, 60 Okl. 109, 159 P. 496.

Information was obtained at the clerk's office that led defendant to believe his case had not been assigned for trial. Plaintiff's counsel knew defendant denied all liability. Plaintiff had received $400 on the account while the suit was pending, but no allowance was made therefor when judgment was ren

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avoidable casualty or misfortune as prevented the party from defending. When a judgment is sought to be vacated under subdivision 4 of the statute, the defense on the part of the defendant so applying must be affirmatively alleged in the petition; but, where the judgment or order is to be vacated under the provisions of subdivision 3 of such section, an affirmative averment as to the defense is not necessary.18

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Judgments or orders of the court are under control of the court, pronouncing them, during the term at which they are rendered or entered, and may be set aside, vacated, or modified by the court.**

dered against defendant in his absence. Held, that the judgment should be set aside. Nash v. Denton, 51 P. 896, 59 Kan, 771.

It is not error to overrule a motion to set aside a judgment on the ground that defendant was surprised because court convened at 9 o'clock a. m., instead of 9:30, as his attorneys supposed. Savage v. Dinkler, 72 P. 366, 12 Okl. 463.

477 Wagner v. Lucas, 79 Okl. 231, 193 P. 421.

48 Leforce v. Haymes, 105, P. 644, 25 Okl. 190.

49 Harn v. Boyd (Okl.) 170 P. 505; Sylvester v. Riebolt, 164 P. 176, 100 Kan. 245; Simpkins v. Parsons, 50 Okl. 786, 151 P. 588; J. R. Watkins Medical Co. v. Lizar, 78 Okl. 302, 190 P. 552; Philip Carey Co. v. Vickers, 38 Okl. 643, 134 P. 851; Todd v. Orr, 44 Okl. 459, 145 P. 393; North v. Hooker (Okl.) 172 P. 77; Philip Carey Co. v. Vickers, 38 Okl. 643, 134 P. 851; Simpkins v. Parsons, 50 Okl. 786, 151 P. 588; Parks v. Haynes, 52 Okl. 63, 152 P. 400; Spottsville V. Western States Portland Cement Co., 146 P. 356, 94 Kan. 258.

This rule will not be applied so as to enable a party to take advantage of his own negligence or misconduct, to the injury of other parties. Cornell University v. Parkinson, 53 P. 138, 59 Kan. 365.

Courts of general jurisdiction have inherent power to set aside a judgment and grant a new trial for prejudicial error, at the same term at which the judgment is rendered. Scanland v. Board of Com'rs of Ottawa County, 56 Okl. 56, 155 P. 898.

A district court can, during term, set aside any judgment rendered at the term, and render such judgment as should have been rendered. Brown v. Walker (Okl.) 174 P. 1050.

Judgments, decrees, or other orders of court, however conclusive, are under control of the court which pronounces them during term at which they are rendered or entered of record, and may during that time be set aside or vacated. North v. Hooker (Okl.) 172 P. 77.

During the term at which a judgment is rendered the court has power to amend it, either in form or substance, to the extent that the facts may warrant and justice require. Chapman v. Western Irrigation Co., 90 P. 284, 75 Kan. 765. After term, a judgment against one defendant cannot be modified by HON.PL.& PRAC.-81 (1281)

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