A petition, seeking to vacate a judgment may be filed in the original action in which the judgment was rendered. 89 An answer filed in connection with an application to open a judg ment rendered on service by publication need not present a defense coextensive with the entire demand, or with every demand of the petition, but the defense must be complete and perfect, so as to overcome at least the portion of plaintiff's claim against which it is directed.90 of the court designates the action by a different number than that given the original action does not prevent the court from determining the same, though paragraph 4762 is susceptible of the construction that the papers should be filed with those of the original action. Holt v. Holt, 102 P. 187, 23, Okl. 639. If plaintiff was defrauded in the assignment of alimony because her husband had transferred property before the divorce, her remedy was to set aside the judgment awarding the divorce and alimony, and not to sue his grantee to set aside the conveyance. Kessinger v. Schrader, 98 P. 236, 79 Kan. 23. Where a petition to vacate a judgment and for a new trial under section 4464, St. 1893, states, as a defense to an award of damages in the sum of $400 for withholding possession of land and waste committed thereon, that the real damage for waste was but $25, and the sum awarded as damages for withholding possession is not shown, and such award was made by a referee, and the findings of fact of the referee are not attached to or set up in the petition for a new trial, the petition does not state such facts as will justify a court în vacating the judgment, as the court should presume that the principal award of damages grew out of the withholding of the premises. Provins v. Lovi, 50 P. 81, 6 Okl. 94. Verification.-Petition which does not describe judgment to be vacated, and is not verified, does not comply with Rev. Laws 1910, § 5269. Maston v. Chandler Building & Loan Ass'n, 61 Okl. 230, 157 P. 366; Jenkins v. Brown, 46 Okl. 132, 148 P. 697; Crowley-Southerland Commission Co. v. Husband, 140 P. 1144, 42 Okl. 77; Allen v. Gaston (Okl.) 189 P. 183. Defense necessary.-Application to vacate under Wilson's Rev. & Ann. St. Okl. 1903, §§ 4760-4763, inclusive, for unavoidable casualty or misfortune, must set forth a valid defense. Atchison, T. & S. F. Ry. Co. v. Schultz, 103 P. 756, 24 Okl. 365. A defendant to vacate a judgment must set up a valid defense. Tracy v. State, 60 Okl. 109, 159 P. 496. Fraud.-A motion is not the proper method by which to seek vacation of a judgment alleged to have been obtained by fraud. Thompson v. Caddo County Bank, 82 P. 927, 15 Okl. 615. To vacate a judgment on the ground of fraud, the applicant should set forth the judgment, and should show that the applicant had then an existing and meritorious defense by stating the facts constituting his defense. Sapford v. Weeks, 31 P. 1088, 50 Kan. 339. 89 Roberts v. Hope, 39 Okl. 173, 134 P. 434. 90 Williams v. Board of Com'rs of Kiowa County, 88 P. 70, 74 Kan. 693. (Caption.) PETITION ΤΟ VACATE JUDGMENT Comes now the said plaintiff, A. B., and respectfully represents and shows to the court: 1. That on the day of 19, said defendant, C. D., filed a petition in the district court of county, state of Oklahoma, in which said defendant, C. D., was plaintiff, and this plaintiff, A. B., was defendant, praying for judgment for the sum of dollars; that a copy of said petition is hereto attached, marked Exhibit A, and made a part hereof. 2. That process was duly issued in said cause and served upon this plaintiff, the defendant in said action. 3. That, immediately upon being served with summons in said action, plaintiff went to the office of one X. Y., an attorney at law, in the city of, and practicing in all of the courts of said state, and retained and engaged said attorney to represent him in said action, and stated to said attorney his defense to said cause of action; that said X. Y. accepted said employment, and promised plaintiff herein that he would attend to said action, and would represent plaintiff therein, and would do all things necessary to be done to protect and care for the rights and interests of the plaintiff in said action; that several times following said agreement with said X. Y., and prior to the rendition of judgment in said action, he was informed by said X. Y. that he had made investigation of the facts of said action, and had prepared and filed an answer in said action, and had done all other things necessary to protect the rights and interests of this plaintiff in said action. day of 19-, term of said district 4. Plaintiff further alleges that on the 19, being one of the days of the court, the above named defendant procured a judgment of default to be entered against this plaintiff in said action, and, further, a judgment against this plaintiff in the sum of dollars, and costs of suit, all without the knowledge and consent of this plaintiff; that a copy of said judgment is hereto attached, marked Exhibit B and made a part hereof. 5. Plaintiff further alleges that said court came to an end on the day of 19-, term of said 19; that he day of was not informed, nor did he know, that judgment had been entered in said cause until several days thereafter, to wit, about the 19; that he then also learned that said X. Y. had not made any appearance whatever in said action on the part of this plaintiff, nor had he prepared or filed any answer in said action for this plaintiff, but had wholly failed and neglected to perform any part of his duties as attorney for this plaintiff in said action. 6. Plaintiff further alleges that he relied wholly and implicitly upon the agreement made with said X. Y. to represent him in said action, and to interpose his defense therein, and relied upon the statement made to him by said X. Y., prior to the rendition of judg ment in said action, that he had done all things necessary for the protection of the rights of this plaintiff therein. 7. Plaintiff further alleges that he has a good and valid defense to the cause of action alleged in the petition in said action; that he submits and files herewith a full and complete answer to said petition; that a copy of said answer, containing his said defense, is hereto attached, marked Exhibit C, and made a part hereof. Wherefore plaintiff herein prays that the said judgment herein may be declared fraudulent and void, and that the same may be vacated and set aside, and said cause reinstated as fully as if said order and judgment had not been made and rendered, and that plaintiff be permitted to file his answer to said petition herein and to interpose his said defense to said petition. (Verification.) G. H., Attorney for Petitioner. (Attach, as exhibits, copies of petition, judgment, and answer.) § 1317. Hearing Mere irregularities in the method of obtaining the vacation of a judgment wrongfully obtained, and to which no objections were made, will not defeat the order vacating such judgment. 91 It is not necessary that the trial court should set aside the judgment within the term, but it is necessary that it make some disposition of it.92 91 Boston Loan & Trust Co. v. Organ, 36 P. 733, 53 Kan. 386. 92 Gooden v. Lewis, 101 Kan. 482, 167 P. 1133. § 1318. Evidence On a motion to vacate a judgment where the record shows an appearance by an attorney, but no service of summons upon the defendant, it may be shown by parol that the attorney was unauthorized to make the appearance.93 In an action to set aside a judgment quieting title because obtained by fraud the defendant may show good faith by evidence as to information on which he based his claim of title, although not admissible to prove the title."* § 1319. Trial of ground of review "The court may first try and decide upon the grounds to vacate or modify a judgment or order before trying or deciding upon the validity of the defense or cause of action." 95 In a proceeding to set aside a judgment and to secure a new trial for newly discovered evidence, it is not error to sustain a demurrer to plaintiff's petition, where no diligence is shown, or the alleged evidence will be incompetent, or where the facts were within the knowledge of the plaintiff at the time of the trial.90 § 1320. Defense must be shown "A judgment shall not be vacated on motion or petition, until it is adjudged that there is a valid defense to the action on which the judgment is rendered; or, if the plaintiff seeks its vacation, that there is a valid cause of action; and where a judgment is modified, all liens and securities obtained under it shall be preserved to the modified judgment." 97 It is a condition precedent to the vacation of a judgment for irregularities that it be determined there is a valid defense to the action or a valid cause of action.98 However, a meritorious defense 93 Wheatland Grain & Lumber Co. v. Dowden, 110 P. 898, 26 Okl. 441. 94 Page v. Sawyer, 101 Kan. 612, 168 P. 878. 95 Rev. Laws 1910, § 5270. 96 Robbins v. Bank of Commerce of Walters, 118 P. 258, 29 Okl. 535. 97 Rev. Laws 1910, § 5271. 98 Holt v. Spicer (Okl.) 166 P. 149. A motion by plaintiff to set aside a judgment against him was unavailing, under Code, § 568 (Gen. St. 1901, § 5054), where no showing was offered and no adjudication was made that plaintiff had a valid cause of action, as required by section 572 (section 5058). Brown v. Dann, 97 P. 862, 78 Kan. 211. It is error to vacate a judgment until the defendant has presented to the is not necessary on a motion to vacate a judgment void on its face, and vacation must be unconditional.99 § 1321. Suspending proceedings-Bond-Forms "The party seeking to vacate or modify a judgment or order, may obtain an order suspending proceedings on the whole or part thereof; which order may be granted by the court, or any judge thereof, upon its being rendered probable, by affidavit, or by exhibition of the record, that the party is entitled to have such judgment or order vacated or modified. On the granting of any such order, the court, or judge, may require the party obtaining any such order to enter into an undertaking to the adverse party to pay all damages that may be caused by granting of the same." 1 BOND TO SUSPEND PROCEEDINGS PENDING HEARING OF PETITION TO VACATE JUDGMENT (Caption.) Know all men by these presents, that we, A. B., as principal, and E. F. and G. H., as sureties, are held and firmly bound unto C. D., in the penal sum of dollars, for the payment of which sum, well and truly to be made, we do bind ourselves and each of us, our heirs, executors and administrators, jointly and severally by these presents. the day of The condition of the above obligation is such that, whereas, in the district court of county, in the above entitled cause, on 19, it was ordered, adjudged, and decreed by the court that (set forth judgment); and whereas, the above named principal has filed his petition in said cause praying that said judgment be vacated and set aside, and gives this undertaking in order that execution of said judgment shall be stayed and all proceedings thereon suspended, pending the determination of said cause on said petition to vacate and set aside said judgment: Now, therefore, if the said above named principal shall pay all costs and damages that may be awarded against him by reason of such stay of execution and suspension of proceedings on said judg court a complete answer to the action on which the judgment was rendered. Schuler v. r'owler, 64 P. 1035, 63 Kan. 98. 99 Pettis v. Johnston, 78 Okl. 277, 190 P. 681. 1 Rev. Laws 1910, § 5272. |