Maxey v. Welch

WELCH, Chief Judge. This is an appeal by Lena Maxey, nee Jeffress, from an order of the district court of Pontotoc County, denying her petition to set aside and vacate a default judgment rendered against her May 5, 1948, quieting title to certain real estate in Leona Welch and others. The record reveals that notice by publication was mailed to Mrs. Maxey at her Denver address, February 28, 1948, containing the usual provision as to answer date, same being on or before April 10, 1948. On March 2, 1948, Mrs. Maxey mailed the notice and copy of plaintiff’s petition to Lawrence Green, Attorney who had been representing her in other matters in Oklahoma, together with a letter wherein she stated, “What can you do about the enclosed petition ? Please advise by return mail.” Mr. Green replied to this letter on April 5, 1948, advising her the taxes were more than the land was worth, and it would not pay her to try and redeem said land. In October, 1948, Mrs. Maxey communicated with Mr. Robert J. Wimbish, an attorney of Ada, Oklahoma, concerning the quiet title action, and on April 17, 1950, plaintiff in error filed her petition to vacate said judgment on the ground that it was obtained against her by default, and that she was prevented from defending by reason of unavoidable casualty and misfortune, and at that time tendered for filing in the case an answer and cross-petition. Mrs. Maxey testified that she was ill and confined to her bed at the time she received the letter from Mr. Green, and that it was due to this illness that she was actually prevented from defending against plaintiff’s original action, and that she thought Mr. [769] Green was taking care of the case. However, there are a number of exhibits in the record which reveal that her illness did not prevent her from carrying on correspondence concerning other matters which Mr. Green was handling, and also said correspondence failed to indicate that she had any further interest in this case after she received the letter from Mr. Green advising her against trying to redeem the land in the quiet title action, until she began to correspond with her attorney herein in October, 1948. Prior to the letter from Mr. Green, Mrs. Maxey had corresponded with an active realtor in Ada, a long time acquaintance or friend, and had received like advice from him that the taxes exceeded the then value of the land. This, and the matters formerly mentioned, might well indicate that Mrs. Maxey at that time had no interest in seeking to defend the action and concluded not to defend it. It seems that she had some revival of interest in the matter from the latter part of 1948 to 1950, but there is little, if anything, tending to show that her failure to defend this action was due to any unavoidable casualty or misfortune. From examination of the record we are unable to find a clear showing of an abuse of discretion by the trial court in denying the petition to set aside the default judgment. In 49 C.J.S. Judgments § 337, p. 671, it is stated: “Except in cases where the statute gives an absolute right to relief, in which case the court cannot refuse to open the default judgment, as a general rule, a default judgment will not be opened or vacated as a matter of course; but the court may exercise a large discretion in granting or denying an application to open or vacate a default judgment. * * *” In the case of Leslie v. Spencer, 170 Okl. 642, 42 P.2d 119, this court held: “Applications to set aside default judgments are addressed to the sound discretion of the trial court, and the action of the trial court on such applications will not be reversed except upon a clear showing of an abuse of discretion.” In Schuman v. Sternberg, 179 Okl. 15, 65 P.2d 410, 412, this court held: “In a proceeding to vacate a judgment on the ground of unavoidable casualty and misfortune, it must appear that the complaining party is not guilty of negligence in allowing such default to be taken, and that no reasonable or proper diligence or care could have prevented the trial or judgment.” We are of the opinion that these authorities are controlling in the case at bar. Judgment affirmed. CORN, V. C. J., and DAVISON, JACKSON and CARLILE, JJ., concur. HALLEY, WILLIAMS and BLACKBIRD, JJ., dissent.