Bosch v. Kassing

• Decision Date: 17 September 1884
• Citation: 20 N.W. 454,64 Iowa 312
• Parties: BOSCH v. KASSING ET AL
• Court: Iowa Supreme Court

20 N.W. 454

64 Iowa 312

BOSCH v. KASSING ET AL

Supreme Court of Iowa, Council Bluffs

September 17, 1884

Appeal from Des Moines Circuit Court.

PLAINTIFF filed his petition in the court below, and demanded a judgment against the defendants upon a promissory note, and a decree foreclosing a mortgage upon certain real estate, given by Henry Kassing and Celinda Kassing, to secure the payment of the note. At the September term, 1883, of said court Henry Kassing and Celinda Kassing appeared by counsel. The defendant, Loper, made default. A judgment and decree were rendered as prayed against all of the defendants. At the next term of the court the defendant, Loper, appeared and moved the court to correct the record and expunge the personal judgment rendered against him, upon the ground that plaintiff was not entitled to such judgment against him upon the pleadings and evidence, and that said judgment was improperly and irregularly rendered, and was a mistake which escaped the attention of the court. The motion was sustained. Plaintiff appeals.

AFFIRMED.

T. B Snyder and John Greener, for appellant.

Hall & Huston, for appellees.

OPINION

ROTHROCK, CH. J.

It appears from the averments of the petition that on the first day of March, 1877, the defendants, Henry Kassing and Celinda Kassing, executed and delivered their promissory note to the defendant, Loper, by which they promised to pay to the order of Loper the sum of $ 1,100 in five years, and that on the first day of March, 1882, Loper indorsed the note to the plaintiff,--the indorsement being in these words: "For value received, I hereby assign the within note to John G. Bosch, March 1, 1882.

"W. R. LOPER."

It will be observed that the indorsement was made before the note became due. The three days of grace provided by law had not yet expired. It was not averred in the petition that any demand of payment was made of the makers and notice of non-payment given to Loper, the indorser. It is very plain, therefore, that the allegations of the petition did not constitute a cause of action against Loper, and the court was not authorized to render a judgment against him. A default is an admission of the cause of action stated in the petition, and that something is due to the plaintiff. But where no cause of action is stated in the petition a default can have no such effect. It is true that a defendant may be concluded by a default where the facts stated in the petition do not constitute a good cause of action in law, or where the petition...