121 P.2d 583 | Okla. | 1942
This is an appeal by C.B. Warr and Kenneth Ellison from a judgment against them by default after their request to file answers to cross-petitions of their codefendants out of time had been denied. The sole issue here involved is whether the refusal of the trial court to permit said parties to file answers out of time constituted an abuse of discretion. In order that the matter in controversy may be better understood, the events as reflected by the record will be briefly stated in their chronological order. On June 5, 1939, Dow Ewing instituted this action against Frank Clark and a number of other persons not here involved. Included in the defendants named in said action were C.B. Warr and Kenneth Ellison. The liability of the above-named parties was alleged to have arisen out of the relation of principal and agent between said parties and one Sam Fullerton, also known as Sance Fullerton, and with whom the plaintiff and a number of the defendants had contracted. The defendants, made parties to the action by reason of having liens similar to those of the plaintiff, filed on June 27, 1939, cross-petitions wherein they sought money judgments against the same defendants as the plaintiff in said action. C.B. Warr, on June 17, 1939, filed an answer and cross-petition wherein he denied the allegations of the petition of Dow Ewing and set up a claim in himself to certain personal property upon which said plaintiff was seeking to foreclose his lien. Kenneth Ellison failed to file any pleading whatsoever to the petition of the plaintiff or the cross-petitions of his codefendants. The said C.B. Warr omitted to file any answer or other pleading to the cross-petitions of his codefendants. The case was called for trial on October 10, 1939, at which time Kenneth Ellison asked permission to file a verified answer out of time and C.B. Warr requested permission to file verified answers to the cross-petitions of his codefendants, and also to verify the answer which he had theretofore filed in said cause. The request of both of said parties was denied, to which action of the court the said defendants saved proper exceptions. The court thereupon sustained a so-called motion for judgment on the pleadings, but thereafter the record was amended so as to show that judgment against C.B. Warr and Kenneth Ellison had been entered by default after their request to file answers out of time had been denied. Motion for new trial was heard and overruled, as was a motion to vacate the default judgment, and thereupon said parties perfected this appeal. As pointed out hereinabove, the sole issue presented for our determination is whether under the circumstances narrated the action of the trial court in refusing to permit the defendants here involved to file answers out of time constituted an abuse of discretion.
It is well-settled doctrine that whether a defendant should be permitted to file an answer out of time rests ordinarily in the sound judicial discretion of the trial court, and that its action thereon will not be disturbed except where such discretion has been abused to the manifest injury of the complaining party (Wilson Motor Co. v. Dunn,
WELCH, C. J., CORN, V. C. J., and OSBORN, BAYLESS, GIBSON, HURST, and ARNOLD, JJ., concur. RILEY and DAVISON, JJ., absent.