Fox v. Nolan

Decision Date17 February 1914
Citation145 N.W. 491,165 Iowa 302
PartiesLUTHER FOX, Appellee, v. MARY A. NOLAN, Appellant, and W. H. GLYNN, Appellee
CourtIowa Supreme Court

Appeal from Madison District Court.--HON. J. H. APPLEGATE, Judge.

APPEAL by Mary A. Nolan from judgment against her on promissory notes.

Affirmed.

C. A Robbins, for appellant.

Sam C Smith and W. S. Cooper, for appellee Fox.

John A Guiher, for appellee Glynn.

WITHROW, J. LADD, C. J., and DEEMER and GAYNOR, JJ., concur.

OPINION

WITHROW, J.

I.

Suit was brought in the district court of Madison county for several promissory notes held by plaintiff, Fox, against Mary A. Nolan and W. H. Glynn, the makers. Separate answers were filed by the defendants; that of Mary A. Nolan pleading want of consideration as to herself, with other defenses not material to the questions now presented. The answer was filed May 7, 1912.

Trial notice for the October, 1912, term of the court was duly filed by plaintiff's attorneys more than ten days prior to the opening of the term. In the printed bar docket for the term this case appeared among those noted for trial. The cause was assigned for trial on October 10th, and defendant not appearing, nor her counsel, default and judgment were entered against her. Afterwards, and during the term, motion was filed to set aside the judgment as to Mary A. Nolan, which upon being considered was overruled, and this appeal is taken.

II. Three errors are assigned. First, that the court erred in assigning the cause for trial when no trial notice had been served or noted as required by law. The record shows to the contrary. Trial notice was filed with the clerk in the manner and for the time fixed by Code, section 3658.

III. The second alleged error is in not submitting the issues to a jury. Either party to an action at law is entitled to a jury trial, but such right may be waived. Code, section 3733, provides that trial by jury may be waived by a party by suffering a default or by failing to appear at the trial. The defendant made no appearance on the day the cause was noted for trial, and the amendment to the abstract shows that the assignment was regularly made, and also that the required trial notice had been served. There was such failure to appear as constituted a waiver of the right to a trial by jury.

IV. The third assignment charges error in entering default against appellant when answer was on file. Technically the appellant was not in default, as she had answered. But, applying the term more broadly, there was no action taken by her for the further assertion of her rights, and, when the cause came regularly on to be heard, the plaintiff was entitled to a trial. The entry of the trial court is entitled "default and judgment." It recites the failure of the defendant Mary A. Nolan to...

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1 cases
  • Fox v. Nolan
    • United States
    • Iowa Supreme Court
    • February 17, 1914

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