dissenting:
I cannot agree with the majority opinion which finds the negligence of Appellant’s attorney to be “good cause” sufficient to justify waiver of the ten-day filing requirement of 40 O.S.1981 § 2-610. Neither can I agree that, under the circumstances, the trial court abused its discretion in refusing to accept the attorney’s negligence as “good cause”.
The refusal to allow a pleading to be filed out of time will be disturbed only in a case of a clear abuse of discretion and an abuse of discretion by the trial court will not be presumed on appeal. Oklahoma Gas & Electric Co. v. Chez, 527 P.2d 165 (Okl.1974); Continental Supply Co. v. Smith, 115 Okl. 46, 241 P. 770 (1925). To reverse a trial court on the ground of abuse of discretion it must be found that the trial judge made a clearly erroneous conclusion and judgment, against reason and evidence. In re Crane’s Estate, 201 Okl. 354, 206 P.2d 726 (1949); Abel v. Tisdale, 619 P.2d 608 (Okl.1980).
Appellant’s reliance on American Bank of Commerce v. Chavis, 651 P.2d 1321 (Okl.1982), is misplaced. That opinion affirmed the trial court’s exercise of discretion in vacating a default judgment. Appellant here is not seeking the vacation of a default judgment. She has had two due process hearings. She now alleges that the trial court abused its discretion in not excusing her attorney’s neglect. In American Bank of Commerce, there is this language:
This Court has repeatedly held that the negligence of an attorney while representing his client is imputed to the client and constitutes negligence of the client, and accordingly does not constitute unavoidable casualty and misfortune, justifying the vacation of a judgment, p. 1323
Notwithstanding expressions in some of the earlier cases which appear to hold to the contrary, we reiterate the holding of a majority of the Oklahoma cases on this subject, that the negligence of an attorney committed within the course of his employment as an attorney is imputed to the client and constitutes negligence of the client. Any expressions in the earlier cases to the contrary are overruled. pp. 1323, 1324.
*744We are mindful that an attorney’s negligence in such matters as filing timely pleadings or docketing court appearance if too readily excused encourages shoddy law practice and rewards the negligent at the expense of the vigilant. We are also aware that such negligence, if too generously excused, is a potential device for delaying unduly the trial of a case, p. 1824.
The majority opinion substitutes its decision for that of the trial court without any finding that the trial court abused its discretion. This is not the proper standard of review for this Court. I find no evidence that the trial court abused its discretion in this case and would Affirm the dismissal order.