(dissenting).
I cannot concur in the majority opinion for the following reasons. I recognize the general rule that the trial court is given a wide discretion in passing upon applications to vacate default judgments, and that the decision of the court will not be reversed on appeal except where it is shown that the court abused its discretion. Here, the default judgment was sought to be set aside upon the statutory grounds of unavoidable casualty and misfortune, by a nonresident of Oklahoma. Service of process was by publication.
However, there is another well established rule that the majority opinion appears to have overlooked or disregarded. That rule is to the effect that it is the policy of the law to have every litigated case tried on its merits. It is clearly announced in the first and second paragraphs of the syllabus in Morrell v. Morrell, 149 Okl. 187, 299 P. 866, as follows:
“It is the policy of the law to have every litigated case tried on its merits, *770and default judgments are viewed with disfavor.”
“Application to set aside default judgment, filed after term, is addressed to trial court’s sound legal discretion; trial court’s discretion in passing on application to set aside default judgment should be exercised to promote justice; much stronger showing of abuse of discretion must be made, where default judgment has been set aside, than where it has been refused.”
The facts clearly show that the applicant to vacate, Lena Maxey, resided in Denver, Colorado, when the default judgment sought to be vacated was rendered on May 5, 1948. She had been a party to much litigation in Pontotoc County, Oklahoma, growing out of the estate of her deceased father. Mr. C. F. Green, an attorney of Ada, Oklahoma, represented her in all of her legal business in that County for many years. Mr. Green died in January, 1947, and his son, Lawrence Green, had become associated with his father prior to his father’s death and had undertaken to take over their pending law business, including cases in which Mrs. Maxey was interested.
When the present action was filed and notice by publication given, Mrs. Maxey promptly mailed the notice to Lawrence Green on March 2, 1948, and asked him what he could do about the case and requested an answer by “return mail.” She heard nothing from him until she received a letter dated April 5th, and received by her on April the 9th or 10th, being more than thirty days after she had requested an immediate reply in forwarding her copy of the notice to him.
When Mr. Green wrote Mrs. Maxey on April 5th, 1948, he advised her that he had been covered up with work since his father’s death. He advised her that he had conferred with the plaintiffs, thinking he might recover something for her for a quit claim deed, but had failed, and advised her that he did not believe it would pay her to try to redeem the land which had been sold for delinquent taxes. He did not state that he had not filed any pleading or that a default judgment might be taken. Another friend in Ada advised Mrs. Maxey that he doubted she could get anything out of the case except a small sum that might be paid her for a quit claim deed to the land involved.
The evidence is clear that Mrs. Maxey was bedfast when the default judgment was taken against her. She was able to write some letters while in bed but there is no evidence that she did not rely upon her attorney at Ada to look after the case and was not advised by him that he intended to or had permitted a default judgment to be rendered. In Grayson v. Stith, 181 Okl. 131, 72 P.2d 820, 114 A.L.R. 276, this Court said:
“The act of an attorney in abandoning his client’s case without notice to the latter, and in permitting a default judgment to be rendered against his client without his knowledge or consent, constitutes unavoidable casualty or misfortune under the seventh subdivision of section 556, O.S.1931 (12 Okl.St.Ann. § 1031, subd. 7).”
I think the evidence is clear that Mr. Green abandoned the case without notice to Mrs. Maxey who evidently felt secure that he was representing her and would continue to represent her. This is not intended as any reflection upon Mr. Green, but it is clear that Mrs. Maxey did not know that he was not going to file any pleading whatever in the case. A demurrer, a motion or general denial would have avoided a default judgment. Mrs. Maxey was never advised that he intended to permit a default judgment.
It is not shown that the vacation of the judgment in question would cause any burden upon the plaintiffs or result in any considerable loss.
I think the default judgment should have been vacated and Mrs. Maxey given her day in court. It is not disputed that the answer attached to her motion to vacate *771set up a valid defense to plaintiffs’ action. For these reasons I dissent.
I am authorized to state that BLACKBIRD, J., concurs in the views expressed herein.