VINCENT v. KELLY

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VINCENT v. KELLY
1926 OK 624
249 P. 942
121 Okla. 302
Case Number: 16915
Decided: 07/13/1926
Supreme Court of Oklahoma

VINCENT
v.
KELLY.

Syllabus

¶0 1. New Trial -- Grounds -- Negligence of Attorney not "Unavoidable Casualty or Misfortune." The attorney appearing of record and present in court when a cause is called for trial is the agent of the litigant represented by him for the purposes of the trial, and if the cause is not properly triable at the time it is set for the reason that it has not been at issue for ten days prior thereto, as provided by section 582, Comp. Stats. 1921, it is the duty of the attorney to call the court's attention to that fact and ask that the case be stricken from the trial docket and a continuance granted, and if he fails to do so and makes no objection to the case proceeding to trial, but announces his withdrawal as attorney in the cause and leaves the courtroom, his act will be considered the act of his client and a new trial will not be granted upon the grounds of unavoidable casualty and misfortune.
2. Judgment--Grounds for Vacating Default--Negligence of Attorney not "Unavoidable Casualty or Misfortune." It is the duty of an attorney regularly employed in a case to keep advised of its situation and the proceedings had therein, and where, in a proceeding to vacate a judgment under subdivision 7 of section 810, Comp. Stats. 1921, on the grounds of unavoidable casualty or misfortune, the evidence discloses no event or casualty happening against the will and without the negligence or other default of a party, but only carelessness on the part of the attorney in allowing such default to be taken, and that the exercise of proper care and reasonable diligence could have kept him properly advised as to the proceedings and enabled him to appear and defend, such negligence by the attorney in the performance of this duty cannot be considered such unavoidable casualty or misfortune as prevented the party from defending within the purview of this statute, and the trial court did not err in overruling the petition.

G. R. Horner, for plaintiff in error.
Caruthers & Irwin, for defendant in error.

PHELPS, J.

¶1 This cause was originally filed in the superior court of Okmulgee county, it being an action on a promissory note. It appears from the record that plaintiff in error Vincent, who was one of the defendants below, was represented by two firms of attorneys, one firm living at Bristow and the other living at Okmulgee, both of whom appeared as attorneys of record. The issues having been joined, the cause was set for trial for the 17th day of September, 1924, and judgment by default was rendered, the journal entry of which judgment containing the following recitation:

"The case being first called, the plaintiff announces ready, and the defendant being not ready, the case is set for a later hour of the same day, upon agreement of the respective parties by their attorneys of record that a jury would be waived. At the appointed time the case is again called, and the plaintiff announces ready, and the defendants F. E. Morley and J. M. Vincent, Jr., are each three times called in open court but answer not. Thereupon, the firm of Beckett and Lewis announce that owing to the fact that defendant J. M. Vincent, Jr., having not appeared, and they being merely local associate counsel, they desired to retire as counsel of record."

¶2 On November 13, 1924, plaintiff in error filed his petition to vacate the judgment, alleging that the court was without Jurisdiction to enter the judgment complained of for the reason that the cause had not been at issue ten days prior to the date of trial, further alleging that immediately after the service of summons on him he employed a firm of attorneys at Bristow to represent him in his defense of said action, and that they in turn associated with them a firm of attorneys at Okmulgee; further alleging that the printed docket for that term of court showing the date upon which this cause was set for trial was issued more than two weeks before the trial date, which printed docket was promptly furnished the local attorneys at Okmulgee, and such local attorneys wholly neglected and failed to advise defendant or his Bristow attorneys of the setting of said cause, and that such local attorneys also failed to advise the court that the cause was improperly upon the trial docket because the same had not been at issue ten days prior thereto, and when the cause was reached on the trial docket such local attorneys withdrew from the cause, retired from the courtroom and allowed default judgment to be taken, and prayed that the judgment be vacated and set aside, which prayer was denied, to reverse which this appeal is prosecuted. Plaintiff in error, for reversal, urges the proposition that the court was without jurisdiction to render the judgment for the reason that the cause was not at issue ten days prior to the rendition of the judgment as provided by section 582, Comp. Stats. 1921, and that the absence of his attorney constituted unavoidable casualty and misfortune as contemplated by subdivision 7 of section 810, Comp. Stats. 1921, and as sustaining this proposition he cites Harn v. Interstate Building & Loan Co., 68 Okla. 227, 172 P. 1081; Title Guaranty & Trust Co. v. Turnbull, 40 Okla. 294, 137 P. 1178, and Acme Harvesting Machine Co. v. Williams, 89 Okla. 35, 213 P. 731; but an examination of these authorities shows that in each instance the party complaining was in court objecting to being forced to trial, and they are, therefore, not applicable to the facts in this case, for page 41 of the record discloses that when the cause was called for trial, Mr. Beckett, the local attorney for the plaintiff in error, said:

"Mr. Beckett: Before the case goes to trial, I desire to withdraw as counsel--not acquainted with the facts in the case, do not even know the defendant. My connection has been as local counsel to represent Pounders and Pardoe.

"The Court: What is your contention? They were not notified this case was set for trial?

"Mr. Beckett: I presume so; I did not notify them.