FOLTZ v. DESHON

FOLTZ v. DESHON
1926 OK 877
249 P. 358
122 Okla. 42
Case Number: 17328
Decided: 11/09/1926
Supreme Court of Oklahoma

FOLTZ
v.
DESHON.

Syllabus

¶0 Judgment--Petition to Vacate Demurrable for Failure to Show Unavoidable Casualty or Misfortune. When a judgment is rendered on a record which on its face shows that the court had jurisdiction of the parties and the subject-matter, a petition to vacate and set aside such judgment filed at a subsequent term of court under subdivision 7 of section 810, C. O. S. 1921, is subject to demurrer when, as a matter of law, the facts pleaded as constituting the ground for vacating said judgment under said subdivision 7 do not show unavoidable casualty or misfortune within the meaning of said subdivision, and this is true even if the defense pleaded to the original suit, if proven, would be complete.

Bailey E. Bell and Albert A. Hughes, for plaintiff in error.
Woodard & Westhafer, for defendant in error.

BRANSON, V. C. J.

¶1 Herein C. W. Foltz prosecutes error from the county court of Tulsa county. In January, 1925, a judgment was rendered against the said C. W. Foltz in said court in favor of F. B. Deshon, doing business as F. B. Deshon & Company. He had sued the said Foltz on certain promissory notes, and judgment was entered in the favor of the said F. B. Deshon. On the 10th day of October, 1925, and after the term, the said C. W. Foltz filed a petition to vacate the judgment so rendered against him, to which petition his answer on the merits of the original action was attached as an exhibit. The petition to vacate the judgment charged that the same was rendered against the said Foltz by reason of unavoidable casualty. The unavoidable casualty is pleaded as follows: