121 P. 654 | Okla. | 1912
Plaintiff in error prosecutes this proceeding to set aside a judgment by default rendered against it by the county court of McIntosh county on October 6, 1909. Defendant in error, plaintiff below, filed his petition in the court below on the 29th day of July, 1909, alleging therein, in substance, that on September 11, 1908, he delivered to plaintiff in error, defendant below, at Del Rio, Ariz., a car load of horses for shipment to Chanute, Kan., under a written contract which he attaches to his petition as an exhibit, and makes the same a part of his petition. He alleges that while the car of horses was at Dodge City, Kan., they were damaged by default of defendant by the car being bumped and the horses thrown from their feet, to plaintiff's injury in the amount of $500, for which sum he prays judgment. On July 29, 1909, plaintiff filed his pr æcipe for summons. The record fails to show that any summons was thereafter issued, but does show that on the 28th day of July, the day before the filing of the petition and the praecipe for summons by plaintiff, a summons was issued, bearing date July 28th, which was thereafter served by the sheriff of Logan county upon J. R. Cottingham, as agent of defendant. On August 26, 1909, before the return day of the summons, defendant made special appearance and moved to quash the summons and service thereof upon several grounds. No action was ever taken by the court upon this motion; but while the same was pending judgment by default was rendered. Defendant thereafter moved the trial court to vacate and set aside this judgment, which motion was overruled.
Several grounds are urged in this court for reversal of the judgment of the trial court, but the only three we shall notice are: First, that the summons issued herein was void; second, that the court committed error in rendering judgment by default while a motion to quash the summons and service thereof was pending; *302 and, third, that the court rendered judgment for damages without taking any evidence upon which to assess same.
"A civil action may be commenced in a court of record by filing in the office of the clerk of the proper court a petition and causing a summons to be issued thereon." (Section 5591, Comp. Laws 1909.)
By section 5593 it is provided that a summons shall be issued by the clerk upon a written pr æcipe filed by the plaintiff. The summons shall be directed to the sheriff of the county, commanding him to notify the defendant named therein that he has been sued, and that he must answer the petition filed by the plaintiff at the time stated in the summons, or that the petition will be taken as true and judgment rendered accordingly. In State Life Ins. Co. of Indianapolis v. OklahomaCity Nat. Bank et al.,
Upon the second proposition there is a division among the decided cases, but the weight of authority, as well as the sounder *303
reason, seems to support the rule that, where a motion, not frivolous upon its face, has been made by the defendant and is pending undisposed of and not waived, a judgment by default against him cannot be taken, unless the determination of the motion either way could not affect the right of plaintiff to proceed with the cause. Rice v. Simmons,
Motions are authorized by the Code. Section 6058, Comp. Laws 1909. A motion to quash and vacate a summons and service thereof has been recognized as the proper procedure for challenging summons and service thereof because of irregularities; and, when such a motion is overruled and an exception saved, the point is not waived by the defendant by pleading to the merits of the case. Bes Line Town ConstructionCo. v. Schmidt,
The court rendered judgment for plaintiff in the amount of damages sued for, without taking any evidence to establish the amount thereof. This was in contravention of the statute. Section *304
5923, Comp. Laws 1909. It was error to pronounce judgment upon plaintiff's petition, without hearing proof on which to assess the damages. City of Guthrie v. Harvey Lumber Co.,
Other propositions for reversal are urged, some of which may have merit; but, since for the reasons already named the cause must be reversed, with direction to set aside the judgment by default, it is unnecessary to notice them.
TURNER, C. J., and WILLIAMS, J., concur; DUNN and KANE, JJ., not participating.