Opinion
No. 23967
January 29, 1935.
(Syllabus)
APPEARANCE — General Appearance by Filing Motion to Vacate Judgment Based on Nonjurisdictional as Well as Jurisdictional Grounds.
Where a party against whom a judgment is rendered files a motion to vacate the judgment upon the ground that the court has no jurisdiction of the defendant, and said motion is based upon nonjurisdictional as well as jurisdictional grounds, thereby said party enters a general appearance for all purposes as though said appearance had been made at the trial.
Appeal from District Court, Okfuskee County; John L. Norman, Judge.
Action by George Lehmer, executor of the last will and testament of Edwin A. Welty, deceased, against Clarence Gaghagen, Ella Gaghagen, and others, wherein the named defendants filed a motion to vacate an adverse judgment. From a judgment denying the motion, the named defendants appeal. Affirmed.
This is an action filed on the 21st day of March, 1930, in the district court of Okfuskee county by George Lehmer, executor of the last will and testament of Edwin A. Welty, deceased, against Clarence Gaghagen, Ella Gaghagen, C. M. Seran, and Wm. G. Johnston on promissory notes and for the foreclosure of two certain real estate mortgages on lands located in Okfuskee and Seminole counties.
Record examined; held, that the plaintiffs in error made their general appearance in the district court of Okfuskee county for all purposes by filing their motion asking for affirmative relief, the same being nonjurisdictional grounds.
For convenience the parties will be referred to herein as they appeared in the trial court.
Huser Huser and E. Huser, all of Wewoka, for plaintiffs in error.
James C. Wright, of Okemah, for defendant in error.
This is an appeal to review an order of the district court of Okfuskee county overruling a motion to vacate a default judgment against the defendants upon promissory notes and for the foreclosure of two real estate mortgages on lands located in Seminole and Okfuskee counties.
Said action was filed March 21, 1930. Summons were regularly issued, and according to the return of the deputy sheriff of Seminole county were served on both of the defendants herein on the 27th day of March, 1930. C. M. Seran and Wm. G. Johnston were also defendants in the lower court, but are not parties to this appeal. Judgment was rendered for the plaintiffs on the 5th day of May, 1930. A part of the judgment is as follows:
"And the court having examined the process served upon them and each of them finds that the said Ella Gaghagen and Clarence Gaghagen and each of them were duly served with summons more than twenty days prior to this date, and have each failed and refused to plead, answer, or demur, and are decreed to be in default, and the allegations of the plaintiff's petition taken as confessed by them and each of them."
On January 19, 1932, after several terms of said court had passed, the defendants herein filed their motion to vacate the said judgment for the reason they had not been served with summons according to law. And on January 23, 1932, the said defendants filed their amended motion to vacate said judgment. A part of said amended motion is as follows: "These movants further state to the court that, if they are permitted to defend in said action, they will be able to establish certain credits due on said indebtedness and to reduce the amount of said judgment substantially."
We feel it is not necessary for the purpose of deciding this case to discuss whether the summons in said cause was issued and served according to law, as the amended motion to vacate, filed by the said defendants on the 23d day of January, 1932, was based on nonjurisdictional as well as jurisdictional grounds, and they thereby entered their general appearance in the case and for that reason the trial court properly refused to vacate said judgment. The rule is well established by decisions of this court that when a party, against whom a default judgment is rendered, files a motion to vacate said judgment, the same being based upon nonjurisdictional as well as jurisdictional grounds, said party enters a general appearance as though said appearance had been made at the trial. See Burnett et al. v. Clayton, 123 Okla. 156, 252 P. 397; Myers v. Chamness, 102 Okla. 131, 228 P. 988; Morgan v. Karcher et al., 81 Okla. 210, 197 P. 433; Lookabaugh v. Epperson, 28 Okla. 472, 114 P. 738; and the cases cited therein.
We therefore hold that the order of the trial court in overruling the motion to vacate said judgment should be and is, affirmed.
McNEILL, C.J., OSBORN, V. C.J., and RILEY, BAYLESS, WELCH, PHELPS, and GIBSON, JJ., concur. BUSBY, J., absent.