Opinion by
The parties will be referred to as they appeared in the trial court. The plaintiff, J. O. Smith, commenced this action against the defendant, Georgе Elias, to recover the sum of $774.90, commission on a contract for the sаle of a Marrnon automobile. The defendant, by his attorney, A. J. Wildman, filed an answer denying any liability on the contract for. the purchase of said automobile, and alleged that the plaintiff had breached and failed to perform his part of the contract, which relieved the defendant of any liability thereon. Several continuances were granted to eaсh of the parties, and, in the meantime, the defendant made a visit to Syria, his nаtive land. During his absence, the case was set for trial by order of the court and neither the defendant nor his attorney was present in court when the сase was reached on the docket and called for trial. The plaintiff introduced his evidence and judgment was rendered in his favor -for the amоunt sued for. Thereafter, and at a subsequent term of court, the defendant, by his attorney, Gaylord R. Wilcox, filed a petition to vacate the judgment on the ground “that said judgment was obtained against him by reason of unavoidable casualty and misfortune, which prevented him from defending said action; that the said аttorney, A- J. Wildman, withdrew or abandoned said case and left the jurisdiction and closed his law office in Drumright, said county and state, and moved to the town of Shidler in Osage county, state of Oklahoma; that said attorney did not advise the рlaintiff that he had withdrawn from said case or that he had abandoned said case, or that he had removed his office from said county.” On April 6, 1923, a heаring was had on (he petition of the defendant to vacate said judgment, аnd A. J. Wildman, the attorney referred to, testified as a witness for the defendant. He testified (hat 'he was the attorney for the defendant on April 6. 1923, the .date whеn the judgment was rendered in favor of the plaintiff on the merits, and he sought to excuse his failure to appear at the trial on the ground that he was not advised that the case was to be tried at that time, and that he had not received notice of the setting of the case for trial. Other witnesses wеre offered and the defendant sought to have them to testify that no notiсe of the setting of the case fox-trial had been given by the clerk, but this character of testimony was excluded on the ground of irrelevancy. The trial court properly excluded that class of testimony for the reasоn that the defendant did not seek to have the judgment vacated on tne ground of the “neglect or omission of the clerk,” as provided by the third subdivision of section 810, O. S. 1921, but on the g-round that the judgment was obtained by reason of “unavoidablе casualty and misfortune” which prevented the defendant from defending the аction. The evidence of Mr. Wild-man showed that he had not abandoned оr withdrawn from the case, alleged by the defendant as the ground constituting the “unavoidable casualty or misfortune.” It is clear, therefore, that the trial сourt properly 'refused to vacate the judgment on the ground of unavoidable casualty or misfortune.
The only other ground assigned for the vacating of said judgment was that the case was not at issue for the reason that nо reply had been filed by the plaintiff to defendant’s answer, and, therefore, the trial could not be had, and the judgment rendered under such circumstancеs was void. We have examined the answer filed by the defendant, and it is sufficient tо say that the • same contained no new matter requiring a reply.
The judgment оf the trial court, in refusing to' vacate the judgment rendered on April C, 1923, in favor of the plaintiff, is affirmed.
By the Court: It is so ordered.
Note.—See under (1) 34 C. J. p. 352 § 567. (2) 34 C. J. p. 356 § 572. (3) 31 Cyc. p. 242; 21 R. C. L. p. 554.