Mid-West Fruit Co. v. Davis , 104 Okla. 254 ( 1924 )

This is one of those unfortunate and infrequent cases in which counsel are compelled by their sense of duty to a client to come to this court asking that the rules of procedure adopted for the orderly conduct and dispatch of the business of the trial courts be set aside in order to relieve the client from the results of oversight or lapse of memory of counsel. The following language from the opinion in the case of Pulaski Oil Co. v. Conner, 62 Okla. 211, 162 P. 464, is very apropos here:

"Counsel has the sympathy of the writer in the matter, and yet we are bound to impute negligence to the oversight, and the individual litigant must suffer the result of it, rather than that there be laid down a rule so broad as to deprive all default adjudication of any strength. The danger of default is the only guaranty of punctuality in litigants and orderliness in court procedure; and anything less than strictness in the rule of this court in vacating such judgments would undermine trial procedure, and be subversive of public policy."

There is no statement of fact or allegation in the amended motion to set aside default judgment from which it may be fairly inferred that the default in this case came about through any other circumstance than the clear oversight of counsel and their entire lapse of memory as to the pendency of the action. It is shown that on the day the case was set for trial they were engaged in the trial of a law suit at Tulsa, but it is not shown, nor is any reason given, why their attention to the matter should have been entirely distracted from the 28th day of February until the convening of the May term of district court in Muskogee. Counsel were residents of Muskogee and were doubtless many times in the court clerk's office during that time, yet it is not claimed by them that any inquiry was ever directed toward ascertaining the status of this case prior to the entry of the default judgment. The trial court heard the matters presented, together with the reasons which counsel may have seen fit to urge in behalf of their client, and being fully advised in the matter overruled both motions. In this it is not apparent from the record that the trial court abused its discretion. This case is clearly controlled by the case of Wagoner et al. v. Lucas et al.,79 Okla. 231, 193 P. 421.

The judgment and order of the trial court herein should be in all things affirmed.

On motion of plaintiff contained in his brief herein and in conformity with the rules of this court, judgment is hereby rendered against John W. Brown and John Teasdale, sureties upon the supersedeas bond filed herein, in the sum of $1,647.20, with interest thereon at 6 per cent. from May 9, 1923, journal entry of such judgment to be prepared in conformity herewith.

By the Court: It is so ordered.