Illinois Elec. Porcelain v. B. M. Constr. Corp.

Full title: ILLINOIS ELECTRIC PORCELAIN CO. v. B. M. CONSTRUCTION CORPORATION

Court: Supreme Court of Oklahoma

Date published: Sep 23, 1941

117 P.2d 106 (Okla. 1941)

189 Okla. 336

Opinion

No. 30233.

September 23, 1941.

(Syllabus.)

1. APPEAL AND ERROR — Discretion of trial Fourt in vacating default judgment during term.

The action of the trial court in vacating a default judgment during the term at which it is rendered will not be disturbed on appeal in the absence of a showing of a clear abuse of discretion.

2. JUDGMENT — Vacation of default judgment during term — Trial court not deprived of its discretion by fact that defendant negligently failed to enter appearance before expiration of time for answer.

The trial court is not deprived of its discretion to vacate a default judgment during the term at which it is rendered by the fact that the defendant or its attorney was negligent in failing to enter an appearance prior to the expiration of the time for answer.

Appeal from Court of Common Pleas, Oklahoma County; Charles W. Conner, Judge.

Action by the Illinois Electric Porcelain Company against the B. M. Construction Corporation. Default judgment against defendant vacated, and plaintiff appeals. Affirmed.

Smith Buckles, of Oklahoma City, for plaintiff in error.

Brown McAfee, of Oklahoma City, for defendant in error.

HURST, J.

Plaintiff recovered a default money judgment against the defendant five days after the time for answer had expired. At the same term of court defendant filed a motion to vacate the judgment, stating in the motion that it had a good defense and offered to file its answer stating such defense, and that prior to the answer day it had prepared a motion in the cause, but through inadvertence and mistake failed to file the same. Said motion was sustained, but the record is silent as to the showing made or the reason for sustaining the motion. Plaintiff appeals.

The judgment must be affirmed. No abuse of discretion is shown. The fact that there was negligence on the part of the defendant or its attorneys in failing to file the motion does not, as argued by the plaintiff, deprive the court of its wide discretion and control of its judgments during the term. See Higgs v. Muskogee Iron Works, 187 Okla. 419, 103 P.2d 101.

Affirmed.

CORN, V. C. J., and RILEY, BAYLESS, and ARNOLD, JJ., concur.