SPEAKE v. LAWRENCE

SPEAKE v. LAWRENCE
1955 OK 20
279 P.2d 926
Case Number: 36425
Decided: 02/08/1955
Supreme Court of Oklahoma

MRS. ANN SPEAKE, PLAINTIFF,
v.
PAUL LAWRENCE AND GERALD L. LAWRENCE, DEFENDANTS.

Syllabus

¶0 Courts of general jurisdiction have control of all judgments, decrees, or other orders, however, conclusive in their character, during the term at which they are rendered, and may set aside, vacate, and modify them during said term, in the exercise of a wide and extended discretion, and in the absence of an abuse of such discretion, an order of the trial court vacating a judgment during the term will not be reversed.

[279 P.2d 927]

Appeal from the Court of Common Pleas, Oklahoma County, Evert Crismore, J.

W. Custer Service and Jack R. Parr, Edmond, for plaintiff in error.

Pierce, Mock & Duncan, James W. Shepherd, Oklahoma City, for defendants in error.

DAVISON, J.

¶1 This case comes here by appeal from an order of the trial court vacating a judgment during the same term of court in which it was rendered.

¶2 The plaintiff, Mrs. Ann Speake, filed her action to recover for damages allegedly resulting from an automobile collision with another owned by the defendant, Gerald L. Lawrence, and driven by Paul Lawrence, the other defendant. It was alleged that, at the time of the collision, the said Paul Lawrence was the agent, servant and employee of the said Gerald L. Lawrence and was acting within the scope of his employment and agency. Summons was personally served on the defendants with the answer day fixed as January 20, 1954. Default judgment was rendered in favor of plaintiff and against both defendants on January 22, 1954.

¶3 During the same term and on February 17, 1954, the defendant, Gerald L. Lawrence filed a motion to vacate judgment supported by an affidavit to the effect that he did not know, until about three weeks later, that judgment had been rendered against him; that he had a good defense in that said Paul Lawrence was in no way acting as his agent, as alleged; that he thought the action was being defended in his behalf until he learned that it was not and that judgment had been rendered. On March 5, 1954, the trial court vacated the judgment and plaintiff has perfected this appeal.

¶4 The sole question presented is whether or not the trial court abused its discretion in vacating the judgment. During the term, the court has a wide discretion in granting or refusing to grant the vacation of a judgment.

¶5 The following language used in the case of Morgan v. Phillips Petroleum Co., 202 Okl. 181,

"Following an unbroken line of previous opinions, this court recently held, in the case of Tulsa Exchange Co. v. Kiester, 199 Okl. 440,

"By the order vacating the judgment, the parties were merely reinstated in the position they had occupied since the case was first at issue."

¶6 No abuse of discretion has been shown herein which would warrant a reversal of the court's order.

¶7 The judgment is affirmed.