Uncle Sam Oil Co. v. Richards

1918 OK 529, 176 P. 240, 73 Okla. 328, 1918 Okla. LEXIS 145

Opinion

Opinion by

PRYOR, O.

This is an action by A. M. Richards against the Unde Sam Oil Company, to recover under a contract for developing pertain oil and gas leases in Payne county.

The defendant company answered in said cause, the cause came on for trial on the 2d day of December, 1015, and the defendant failed to appear and make defense, and there was trial of said caiise in its' absence, and judgment rendered for the plaintiff in the sum of '$3,759-.48 on the 17th day of April, 1916. ■ ■

The defendant company filed a petition in said cause to have said judgment set aside, and that it be granted a new trial in said cause on the grounds of unavoidable casualty which prevented the defendant' from appearing and making a'defense to the plaintiff’s action. The petition to set aside the judgment was denied by the trial court, and the defendant company appealed.

The defendant on appeal here urges several assignments of error alleged to have been committed by the trial court in the trial of said cause. Where there has been a trial of a cause in the absence of a party or default judgment rendered, and there is no exception saved to the action of a trial court in the trial of said cause, the same cannot be reviewed on appeal, unless the questions raised are jurisdictional. Martindale v. Beattey, 73 Kan. 94, 84 Pac. 527; Johnson v. Jones, 58 Kan. 745, 51 Pac. 224.

All of the evidence taken on the hearing to vacate the judgment is not preserved in the record. The principal grounds relied upon for the vacation of the judgment is that the clerk neglected to notify attorneys for the defendant that the cause was set for trial.

The .evidence shows that the attorney for the defendant, ,v\ho resides in Kansas City, Mo., communicated by letter on -several different occasions with the clerk of the court, regarding the time when said cause would come up for trial, also once by telephone. The last communication that counsel for the defendant had with the clerk in regard to the setting of said cause for trial was on the 27th day, of May, 1915, and the cause was set for trial, and heard on the 2d day of December, 1915. Between the two dates neither-the attorney for the defendant, nor the defendant, made any inquiry or any effort to ascertain when the cause would be set for trial. The failure of the clerk to notify a party- for his' attorney that a cause is set for trial is not a ground -under the statutes for the vacating or setting aside-of a judgment rendered in his absence. North v. Hooker, 68 Okla. 106, 172 Pac. 77; Western Goal & Mine Company v. Green, 64 Okla. 53, 166 Pac. 154.

The facts as disclosed by tie record héf.e tend rather to show that the defendant' 'or its counsel had not used due diligence in .keeping informed as to the setting of ¿aid caiise for trial and the trial '.tHfefeof iind its want of proper diligence in ¿pp'etóng and defending said cause.’ The- -trial court 'did not .abuse its discretion in "-'rfef using to Vacate and set aside said, judgment. ,

Therefore the judgment .of the, trial court refusing to set aside its" former' judgment should be affirme d .

By the Court: It is so ordered.'