affirming denial of section 10318
How later courts described this case
- affirming denial of section 10318
Written by the judges who cited it.
The opinion
ALMA WILSON, Justice,
dissenting:
District Court Rule 10, first, generally defines the parameters for setting aside judgments in the district court, and secondly, contains provisions excepting the operation of the general rule under certain specified circumstances. The rule states:
Rule 10. Notice of taking default judgment
In matters in default in which an appearance, general or special, has been made or a motion or pleading has been filed, default shall not be taken until a motion therefore has been filed in the case and five (5) days notice of the date of the hearing is mailed or delivered to the attorney of record for the party in default or to the party in default if he is unrepresented or his attorney’s address is unknown....
Notice of taking default is not required where the defaulting party has not made an appearance. Also, notice of taking default is not required in the following cases even if the defaulting party has made an appearance: 1) Any case, whether a matrimonial action or otherwise, in which waiver of summons and entry of appearance has been filed; 2) any case prosecuted under the small claims procedure for money judgment or possession of personal property; 3) any forcible entry and detainer case, whether or not placed on the small claims docket; 4) any probate or juvenile proceeding; 5) any case that is at issue and has been regularly set on the trial docket in which neither the other party nor his or her attorney appears at the trial; 6) any case as to any party who has filed a disclaimer; 7) any garnishment proceeding; and 8) any statutory proceeding following the rendition of final judgment in a case_ [Emphasis supplied.]
The exceptions, (including No. 5, above, at issue herein), partake the nature of special or affirmative defenses which operate against the the general rule requiring notice before a default judgment is permitted. Matters in the nature of special defenses must be pleaded by the [party] seeking to secure the advantage thereof. See, e.g., Sanders v. Matthews, 157 Okl. 223 , 12 P.2d 873 (1932). Thus, while the party who files a motion must prima facie show the cause falls within the general parameters of Rule 10, the burden of proving facts to secure the advantage of an exception from the general rule should be placed upon the party affirmatively relying upon such special exception to defeat the general notice requirement, and not upon the party resisting application of the exception.
I dissent because the majority impermis-sibly allocates the burden of proof.
I have been authorized to state that SIMMS and SUMMERS,' JJ., join in the views expressed herein.