AMERICAN INV. CO. v. WADLINGTON

AMERICAN INV. CO. v. WADLINGTON
1926 OK 177
244 P. 435
114 Okla. 124
Case Number: 16347
Decided: 03/02/1926
Supreme Court of Oklahoma

AMERICAN INVESTMENT CO.
v.
WADLINGTON et al.

Syllabus

¶0 Judgment--Vacation After Term--Compliance with Statute. While great discretion is allowed the trial court in the control of its judgments and orders, and in the exercise of its power to vacate or modify the same at the term at which the same was rendered or made, yet the court is without jurisdiction, at a subsequent term, to take any steps toward vacating or modifying a judgment or order of the court unless there is a substantial compliance with the terms of the statute.

McKeown & Green and H. Grady Ross, for plaintiff in error.
B. C. Wadlington and A. W. Wadlington, for defendants in error.

PHELPS, J.

¶1 On March 13, 1923, plaintiff in error, which was plaintiff below, obtained judgment in the district court of Pontotoc county on a promissory note and foreclosure of a real estate mortgage given by defendants to secure the same. Motion for new trial was filed, overruled, and in due time an order of sale was issued, and on September 27, 1923, after the expiration of the term of court at which the judgment was rendered, and before the sale of the mortgaged real estate, defendants in error, who were defendants below, filed their motion to vacate the judgment so rendered, and on November 26, 1923, filed another instrument which they denominated amended petition to vacate the judgment, and on February 18, 1924, they filed what they denominated their second amended petition. Plaintiff entered its special appearance and challenged the jurisdiction of the court to hear and determine the petition to vacate the judgment for the reason that no summons or notice had been issued and served as required by law. Plaintiff's special appearance was overruled, and the court proceeded to hear the statement of witnesses, and entered its order vacating and setting aside the judgment, to reverse which this appeal is prosecuted.

¶2 In its petition in error and briefs plaintiff alleges and argues that the court erred in vacating and setting aside the judgment for the reasons that there was no sufficient allegation in the petition to vacate upon which to predicate such order; that the petition was not verified, as provided by statute, until after hearing had begun on the same; that no defense to the action was set out in the petition; that no competent evidence whatever was introduced in support of the allegations of the petition, and that no summons or other notice was issued and served as provided by statute. An examination of the record convinces us that all of these objections were meritorious, but, since the record before us fails to show that summons was served or general appearance entered, we have no difficulty in reaching the conclusion that the court was without jurisdiction to enter the order vacating and setting aside the judgment, and a proper disposition of this assignment of error will render it unnecessary to dispose of the other questions presented. In such cases section 812, Comp. Stats. 1921, specifically provides that the petition to vacate must be verified by affidavit, and--