American Bank of Commerce v. Chavis

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American Bank of Commerce v. Chavis
1982 OK 66
651 P.2d 1321
Case Number: 54458
Decided: 05/18/1982
Modified: 10/25/1982
Supreme Court of Oklahoma

THE AMERICAN BANK OF COMMERCE, AN OKLAHOMA BANKING CORPORATION, APPELLANT,
v.
OLIN DONALD CHAVIS, A/K/A DON CHAVIS, APPELLEE.

Appeal from the District Court, Oklahoma County; Charles Owens, Trial Judge.

¶0 Appeal from judgment of trial court setting aside a default judgment entered in favor of Appellant and against Appellee.

AFFIRMED.

Jerome S. Sepkowitz, Oklahoma City, for appellant.

Eric J. Groves, Jernigan, Groves, Bleakley, & Tague, Oklahoma City, for appellee.

LAVENDER, Justice:

[651 P.2d 1322]

¶1 Plaintiff-Appellant American Bank of Commerce (ABC) filed a petition on June 20, 1978, seeking money judgment on a guaranty contract from Defendant-Appellee Olin Donald Chavis (Chavis).

¶2 Summons was served on Chavis on June 20, 1978, specifying an answer date of July 24, 1978. Before answer date, Chavis delivered a copy of the petition and summons to his attorney, Jernigan, who agreed to represent Chavis.

¶3 Through some inadvertence, Chavis's pleadings were marked "calendared" but were not placed on the docket book of the firm.

¶4 Shortly before July 28, Jernigan became aware that the answer date had passed. He telephoned a deputy court clerk and was advised no action to take judgment had been initiated. The information from the deputy court clerk was in error as ABC obtained a default judgment on July 25, 1978, for the sum of $8,715.32 plus attorney fees in the amount of $1,302.31 and costs. On July 28, 1978, Jernigan filed an entry of appearance in the cause, and mailed a copy to ABC's attorney, which was delivered on July 31 or August 1, 1978. On August 1, 1978, ABC's attorney wrote Jernigan, advising of the entry of the default judgment.

[651 P.2d 1323]

¶5 Relying on 12 O.S. 1981 § 1031.1 ,

¶6 On December 12, 1978, the court below entered an order vacating the order of September 15, 1978.

¶7 On November 22, 1978, Chavis filed a Petition to Vacate the Default Judgment rendered on July 25, 1978, which was sustained by the trial court on November 1, 1979. From the ruling of the trial court, ABC appeals.

¶8 Both parties concede that since the Jernigan motion was not filed within thirty days from the date of the entry of judgment, that Chavis's right to have the default judgment set aside must be tested under 12 O.S. 1981 § 1031 , Seventh.

"In Midkiff v. Luckey, Okl., 412 P.2d 175, it was held that the trial court did not abuse its discretion in setting aside a default judgment against the defendant Yellow Cab Company, which had misplace or lost the summons served upon its president due to confusion in its office and files because of a prior fire in the company offices. Therein we set forth those matters and reasons that justified or sustained the granting of an application to vacate a default judgment, as follows: in proceedings of this character each case must depend on the facts of the particular case; default judgments are never viewed with favor; litigated questions should be tried on their merits; it is the policy of the law to afford every party to an action a fair opportunity to present his side of a cause; an application to vacate a judgment, under 12 O.S. 1971 § 1031 , is addressed to the sound legal discretion of the trial court, and an order vacating said judgment will not be disturbed on appeal unless it clearly appears that the trial court has abused that discretion; such discretion should always be exercised so as to promote the ends of justice, and a much stronger showing of abuse of discretion must be made where a judgment has been set aside than where it has been refused."

¶11 Notwithstanding expressions in some of the earlier cases which appear to hold to the [651 P.2d 1324] contrary,

¶12 But having so determined, there remains the question of whether the gravity of the inadvertence or neglect of a party is such as ought, under the particular circumstances of each case, to deprive the neglectful party of his day in court.

We held in Upton v. Shipley:

¶13 We are mindful that an attorney's negligence in such matters as filing timely pleadings or docketing court appearance if too readily excused encourages shoddy law practice and rewards the negligent at the expense of the vigilant. We are also aware that such negligence, if too generously excused, is a potential device for delaying unduly the trial of a case. On the other hand, language found in some of the earlier Oklahoma cases such as in Wagner v. Lucas

¶15 IRWIN, C.J., and SIMMS, HARGRAVE and WILSON, JJ., concur.

¶16 BARNES, V.C.J., and HODGES, DOOLIN and OPALA, JJ., dissent.

Footnotes:

1 12 O.S. 1981 § 1031.1 provides: "Within thirty (30) days after the rendition of a judgment, the court, of its own initiative or on motion of a party, may correct, open, modify or vacate the judgment. The court may prescribe what notice, if any, shall be given."

2 12 O.S. 1981 § 1031 in pertinent part provides: "The District Court shall have power to vacate or modify its own judgments or orders within the times prescribed hereafter:

* * * * * *

"Seventh. For an unavoidable casualty or misfortune, preventing the party from prosecuting or defending."

3 Cunningham v. Cunningham, Okl., 571 P.2d 839 (1977); Grayson v. Stith, 181 Okl. 131, 72 P.2d 820 (1937); Pickering Lumber Co. v. Lacy, 170 Okl. 447, 44 P.2d 42 (1935); Southern Bond Company v. Teel, Okl., 550 P.2d 571 (1976); Gavin v. Heath, 125 Okl. 118, 256 P. 745 (1927); Roberts v. Seymore, 181 Okl. 201, 73 P.2d 395 (1937).

Cf. Anderson v. Graham, 87 Okl. 278, 210 P. 281 (1922); First Nat. Bank of Okmulgee v. Kerr, 165 Okl. 116, 24 P.2d 985 (1933); Tippins v. Turben, 162 Okl. 136, 19 P.2d 605 (1933).

4 Okl., 536 P.2d 339 (1975).

5 For example, see McLaughlin v. Nettleton, 69 Okl. 74, 183 P. 416 (1919); Tippins v. Turben, supra, Anderson v. Graham, 87 Okl. 278, 210 P. 281 (1922).

6 170 Okl. 422, 40 P.2d 1048 (1935).

7 79 Okl. 231, 193 P. 421 (1920).

8 See also similar language in Gavin v. Heath, 125 Okl. 118, 256 P.2d 745 (1927); Roberts v. Seymore, 181 Okl. 201, 73 P.2d 395 (1937).

9 21 A.L.R.3d 1264.