162 P. 1081 | Okla. | 1917
The facts pertinent to a decision of this cause are as follows; On January 17, 1913, the trial court overruled defendant's motion to strike and demurrer to plaintiff's petition. Defendant stood upon the demurrer and appealed. Plaintiff at that time sought to introduce his proof of damage, and was refused by the trial court, evidently upon the theory that the appeal divested the trial court of all jurisdiction. July 5, 1915, the cause was reached by this court and dismissed for lack of prosecution on the part of the plaintiff in error. The mandate was issued July 26, 1915. Meanwhile, on February 13, 1915, Kelley filed a motion for judgment on the pleadings. This motion had not yet been passed upon, when the mandate of this court went down. On August 30, 1915, plaintiff's motion being pending for consideration, defendant, in open court, prior to ruling on said motion, asked leave to file an answer; the trial court heard the matter and denied the request, proceeded to trial as on default, and after the evidence on behalf of plaintiff was in, entered judgment for a portion of plaintiff's demand. From this judgment defendant appeals.
The sole question meriting consideration is the action of the trial court in refusing plaintiff leave to file his answer. It is settled in this jurisdiction, by both statute and decision, that the granting or refusing of permission to file pleadings out of time rests largely in the sound judicial discretion of the trial court. Rev. Laws 1910, sec. 4757; Long v. Harris,
In the instant case plaintiff had a right to, and insisted upon, a trial at the time the demurrer was overruled. The trial court wrongly denied this. It is urged that the court and counsel were under the impression that the appeal divested the trial court of all jurisdiction. This court, however, in Adkins v. Arnold,
The instant case is clearly distinguishable from Checotah Hardware Co. v. Hensley, supra, upon the facts. There counsel, likewise under the impression that their appeal from an order overruling their demurrer stayed proceedings in the trial court, neglected to answer within the time given. However, shortly after the original decision of this court in Adkins v. Arnold, supra, and even before the petition for rehearing in that case had been denied, they offered their pleading and asked leave to file it. A refusal of this request was held to be error. Obviously the action of counsel in that case, who were prompt in following the decision of this court, is not comparable to that of defendant here who waited more than three years after that decision, more than six months after plaintiff's second motion for judgment, and until the very day that motion was before the court for decision, before offering their answer for filing.
For the reasons given, the judgment should be affirmed.
By the Court: It is so ordered.