Franklin v. Jackson , 78 Okla. 15 ( 1920 )

On petition for rehearing it is urged that the holding here is in conflict with Merrell v. Merrell, 67 Oklahoma,170 P. 1155, and similar cases holding there must be a substantial compliance with section 5269, Rev. Laws 1910, requiring verified petition and issuance of summons to vacate judgment after the expiration of the term at which it was rendered. The facts appearing of record in the instant case distinguish it. Had plaintiff appealed from the action of the court in vacating the judgment rendered at the preceding term, the petition not being verified and no summons having issued, the cases cited would be in point and controlling. But plaintiff did not appeal from that action of the court. On the contrary, the case proceeded regularly to trial before a jury on its merits, and judgment was rendered in favor of defendants. The court having jurisdiction of the subject-matter, lack of verification and issuance of summons could be waived. First State Bank v. Carr, 72 Oklahoma, 180 P. 856; Continental Gin Co. v. Arnold, 66 Oklahoma, 167 P. 613. Plaintiff took his chances on winning the case on its merits, and the appeal is prosecuted from that judgment.

Petition for rehearing will be denied.

All the Justices concur, except HARRISON and HIGGINS, JJ., not participating.