Banks v. C. C. Taft Co.

• Decision Date: 15 November 1919
• Docket Number: No. 33017.,33017.
• Parties: BANKS v. C. C. TAFT CO. ET AL.
• Court: Iowa Supreme Court

188 Iowa 559

174 N.W. 576

BANKS

v.C. C. TAFT CO. ET AL.

No. 33017.

Supreme Court of Iowa.

Nov. 15, 1919.

Appeal from District Court, Story County; R. M. Wright, Judge.

Suit brought in equity to establish a claim for rent and for foreclosure of a chattel mortgage. The defendants were held to be in default for want of answer, and decree entered as prayed. Thereafter the defendant C. C. Taft Company appeared and filed motion to set aside decree and default. Motion overruled, and defendant appeals. Reversed.Strock, Wallace & McConologue, of Des Moines, for appellant.

J. F. Martin, of Nevada, Iowa, for appellee.

PER CURIAM.

The original notice was served upon appellant in time for the term of court in Story county beginning September 23, 1918. An appearance was entered by counsel for appellant by mail or telephone on or before the first day of said term. No answer being filed, the default of appellant was entered on September 24, 1918, and on October 2, 1918, judgment was rendered for plaintiff as prayed. Thereafter, on October 9, 1918, and still at the same term of court, appellant, by mail, filed an answer in the clerk's office. On receipt of this answer, the clerk informed appellant's counsel that a default and judgment had already been entered, and on October 17, 1918, defendant's motion was filed to set the same aside and permit trial to be had on the merits. Resistance was made to the motion, and it was overruled.

Supporting the motion were affidavits of appellant's counsel and others tending to show a bona fide intention on the part of appellant and its counsel to defend the action on its merits; that on the morning of the second day of the term a clerk in the counsel's office, acting upon their instruction, called up the office of the clerk of the Story district court by telephone to ascertain if time would be given for filing answer, and was informed by the clerk or his deputy that, owing to the interference with court business by the absorption of the attention of members of the bar and others in matters growing out of the state of war then existing and preparations for the draft about to be made, court was about to adjourn for a time, and that there would be at least two weeks in which the answer could be filed; that counsel relied upon said information, and, being themselves busily engaged in assisting and forwarding preparation for the draft, to the exclusion of their ordinary professional business, did not prepare and forward the answer in this...