44 P.2d 42 | Okla. | 1935
This is an appeal from an order and judgment of the district court of Osage county, vacating a previous judgment rendered in that court, and reinstating the cause in which such judgment was rendered for a new trial.
On July 25, 1928, the Pickering Lumber Company, as plaintiff, commenced an action in the district court of Osage county against J. W. Harris, E. N. Lacy, and Mrs. E. N. Lacy to recover a money judgment based upon contract. The case was docketed and numbered in that court as cause No. 12431. In due course of time issues were joined by appropriate pleadings and the cause was regularly set for trial as to the defendants E. N. Lacy and Mrs. E. N. Lacy for February 1, 1929. The defendants failed to *448
appear on the trial date, and default judgment was entered against them. On motion of the defendants, this judgment was vacated on February 18, 1929. From the order vacating the judgment and reinstating the cause for a new trial, the Pickering Lumber Company attempted to appeal to this court. The appeal was dismissed. Pickering Lumber Co. v. Harris et al.,
On the date of trial, the defendants E. N. Lacy and Mrs. E. N. Lacy again failed to appear, either in person or by attorney, and judgment was again rendered against them.
On August 4, 1930, after the term at which the judgment was entered had expired, E. N. Lacy and Mrs. E. N. Lacy, as plaintiffs, filed a petition to vacate the judgment naming the Pickering Lumber Company as defendant. The case was docketed and numbered in the lower court as cause No. 13795. The Pickering Lumber Company filed its answer. The matter was heard in the trial court on the issues joined on October 27, 1930, resulting in a judgment vacating the former judgment of the court and reinstating cause No. 12431 for trial.
The Pickering Lumber Company has perfected its appeal to this court, appearing herein as plaintiff in error.
Proceedings after term to vacate a judgment are authorized by section 556, O. S. 1931, subdivision 7 of which authorizes such vacation "for unavoidable casualty or misfortune, preventing the party from prosecuting or defending."
In an effort to show "unavoidable casualty," the defendants established, in substance, that their attorney resided at Tulsa, Okla.; that he received no notice from the court clerk or any other person advising him that the cause was set for trial; that, subsequent to the first default judgment and prior to the one involved herein, defendants' Tulsa attorney made arrangements with an attorney at Pawhuska to co-operate with him in the case and advise him when the same should be set; and that the Pawhuska attorney, through oversight or negligence, had failed to do so.
The showing made is wholly insufficient to establish unavoidable casualty. On the contrary, it merely establishes a want of diligence on the part of the attorneys acting for the defendants in advising themselves of the setting of the cause. Negligence on the part of the attorney does not constitute unavoidable casualty or misfortune. Gavin et al. v. Heath et al.,
The fact that the oversight or negligence was the fault of the attorney and that the client was not at fault does not render the foregoing principles inapplicable in this case. Wynn v. Frost,
The judgment of the trial court in vacating the default judgment must be reversed for the reason that no sufficient grounds for vacation of the judgment were shown to exist.
Owing to the view of this case adopted in the foregoing portions of this opinion, it is unnecessary to discuss whether the attempted showing of a meritorious defense made by the defendants was sufficient. Olentine et al. v. Alberty et al.,
The judgment of the trial court is reversed, with directions to enter judgment for the plaintiff in error.
McNEILL, C.J., and RILEY, PHELPS, and GIBSON, JJ., concur. *449