[22] In my judgment the majority opinion is wrong when it holds that the time for serving case-made in this case expired fifteen days after the order of May 15, 1953, overruling the defendant's motion to vacate the judgment. The opinion is also incorrect when it determines that the order extending time for the service, suggesting amendments and settling of case-made which was entered on June 5, 1953, after the motion for new trial was overruled, was not a valid order. This is an appeal by case-made and properly so.
[23] This is an important case for the reason that two default judgments have been entered against the defendant, one for $50,000 and the second for $25,000. An offer to settle both of these cases for $5,000 was made by the plaintiffs in the cases before the default judgment was taken. To this day, the defendant has not had an opportunity to present its defense to the claims made against it.
[24] It is well settled by this Court that an application made during term time for the vacation of judgment under 12 O.S. 1951 § 1031[12-1031], may be made by motion or petition. We quote from Corliss v. Davidson Case Lumber Co., 183 Okla. 618, 84 P.2d 7, 11:
"* * * And in Welborn v. Whitney, 179 Okla. 420, 65 P.2d 971, we went so far as to say that a petition to vacate, filed within the same term in which the order or judgment was rendered, will be treated as a motion to set aside the order or to vacate the judgment. It is therefore clear that proceedings to vacate or modify a judgment or order on the grounds mentioned in subdivisions four to nine, inclusive, Section 556 [12-556], O.S. 1931, 12 Okla. St. Ann. § 1031, subds. 4-9, if brought within the same term in which the judgment or order under attack was rendered, may be instituted either by motion or petition, notwithstanding Section 558 [12-558], O.S. 1931, 12 Okla.St.Ann. § 1033, and that if it is begun by petition same will be treated as a motion."
[25] With this statement in the books, I think counsel for defendant was justified and correct in filing a motion to vacate the judgment.
[26] In Hale v. McIntosh, 116 Okla. 40, 243 P. 157, we held that a motion to vacate a judgment had sufficient averments as a petition and stated facts sufficient to entitle the moving party to the relief prayed for. The motion to vacate in the case at bar was very comprehensive and if sustained by the evidence entitled the movant to relief. A response to the motion was filed in this case and evidence offered.
[27] Since we have held it is immaterial whether the application to vacate is called a motion or a petition, we come to the question of the necessity for filing a motion for a new trial after the decision on the motion or petition. It was settled by this Court in Harper v. Rutland Savings Bank, 79 Okla. 274, 192 P. 1101, 1102, that in a proceeding to vacate a judgment under section 1031 that if the motion was based on grounds in subdivisions one, two and three, that a motion for a new trial was not necessary but that if the proceeding was under subdivisions four to nine, inclusive, that a motion for new trial was necessary. I quote from it: *Page 232
"It will be observed that the judgment or order sought to be vacated for causes set forth in subdivisions one, two, and three of section 5267, supra, shall be by motion, upon reasonable notice to the adverse party or his attorney in the action, while the procedure required under the remaining paragraphs of the section shall be by petition upon which a summons shall be served as in the commencement of an action."In the former, the proceedings are carried on under the original action and the judgment or order of the trial court rendered upon such motion may be appealed from by the party aggrieved without the necessity of a motion for a new trial. In the latter, however, the procedure is in the nature of an original action.
"The trial is conducted, as any other action of an equitable nature, and, in order to have the errors occurring during the progress of the trial or the evidence reviewed by this court, a motion for a new trial must be filed and such motion and the ruling of the trial court thereon preserved by being incorporated in the case-made. * * *"
[28] The proceeding here was under subdivision number seven for unavoidable casualty or misfortune. Clearly a motion for new trial was necessary.
[29] We have so held in other cases. In Smith v. Smith, 102 Okla. 70,226 P. 368, we said a motion for new trial was necessary for an appeal in a proceeding to vacate a divorce decree. The same ruling was made in Brady v. Sampson, 104 Okla. 72, 230 P. 248, 249, in which opinion this statement was made:
"* * * An examination of the record further discloses that the proceeding brought must be treated as a proceeding to vacate and set aside an order and judgment of the court under subdivision four of section 810, Comp. Stat. 1921, which is the same as section 5267, Rev.Laws 1910. That being the status of this cause, has this court any jurisdiction to examine this appeal upon its merits or upon the merits of the controversy as presented to the trial court by the several motions?"
[30] After quoting in that case from Harper v. Rutland Sav. Bank, supra, we made this statement:
"We think the rule laid down there is applicable and controlling here. A motion for a new trial was necessary under our practice. There being no motion for a new trial filed in the court below, and ruling had thereon, this court has no jurisdiction to examine the cause upon its merits. There is nothing presented here for review."
[31] In the case of Parker v. Rennie, 136 Okla. 122, 276 P. 721, 722, a default judgment was entered on July 16, 1928. Proceedings to vacate the judgment were begun during term time and the application was denied August 13, 1928. No motion for new trial was filed by plaintiff in error after the application was denied. We quote from that opinion:
"The petition filed by the defendant Parker to vacate the judgment of the court previously rendered in said cause alleges that the said judgment was procured by fraud practiced upon the court and the defendant Parker by the plaintiffs. The allegation of fraud being incorporated in the said petition brings the pleadings within the fourth subdivision of section 810, C.O.S. 1921, and this court, in the case of Smith v. Smith, 102 Okla. 70, 226 P. 368, has held that, to enable this court to review the action of the trial court in refusing to vacate a judgment on a petition filed under the fourth subdivision of section 810, supra, it is necessary to file a motion for new trial, calling the attention of the trial court to the alleged errors committed during the trial of said cause, and that, where no motion for new trial is filed, this court will not review the action of the trial court in refusing to vacate the judgment."
[32] It was held by this Court in Dixon v. Walters, 160 Okla. 172,16 P.2d 571, in a case where a default judgment was taken and two days later a motion to vacate was filed and in term time as follows: *Page 233
"A motion or petition, seeking to vacate a judgment on the grounds of unavoidable casualty and misfortune preventing a party from prosecuting or defending, comes within the provisions of subdivision 7, § 810 [7-810], C.O.S. 1921 (O.S. 1931, sec. 556) and is in the nature of an independent action, and in order that this court may review the judgment of the trial court refusing to vacate a former judgment entered, a motion for new trial is necessary and the same must be incorporated, together with action of the trial court thereon, in the record filed in this court."
[33] In the case at bar the motion to vacate was filed during term time. A motion for new trial was filed to the order or judgment denying the motion to vacate. An appeal has been properly effected from the order overruling the motion for new trial. The filing of the motion for new trial was essential under our decisions. It would be a gross injustice to dismiss the appeal in this case. I dissent.