Jean v. Hennessy
| Decision Date | 08 May 1888 |
| Citation | 37 N.W. 771,74 Iowa 348 |
| Parties | JEAN v. HENNESSY |
| Court | Iowa Supreme Court |
Decided May, 1888
Appeal from Clinton District Court.--HON. A. J. LEFFINGWELL, Judge.
PLAINTIFF obtained a judgment by default against defendant, which the district court on motion set aside, and the appeal is by plaintiff from that order.
AFFIRMED.
A. T Wheeler, for appellant.
Ellis & McCoy and W. J. Knight, for appellee.
I.
The judgment was entered on the twenty-ninth of January, 1887 and the motion to set aside the default was filed during the same term of court. The questions arising in the case are as to the sufficiency of the showing made in excuse of the default and of the affidavit of merits. Defendant resides in the city of Dubuque, and the attorney who had charge of the cause for him in the court below also resides in that city. The action was commenced before the preceding term of the district court, and defendant's attorney appeared in the cause at that term, but filed no pleading in the cause. He applied to the court for time to plead, and time was given him, but no time was fixed within which he was required to plead. The judge stated to the attorney, however, that no further action would be taken in the cause without notice to him. The cause was then continued generally, and the attorney left the court. Under the order then in force fixing the times of holding the district and circuit courts in that district, the next term of the district court would commence about the first of March, and a term of the circuit court would commence early in January. On the first of January, however, the statute abolishing the circuit court (Acts Twenty-first Gen. Assem chap. 134), took effect; and, under section six of the act, a term of the district court would, unless some other provision was made by order of the judges, commence at the time fixed in the order for holding the circuit court. The showing made in excuse of the default is to the effect that the attorney overlooked the fact that a term of the district court would commence in January until near the end of the month, and that he relied on the assurance given him by the judge at the former term that nothing further would be done in the case without notice to him, and did not go to Clinton county until informed that a default had been taken in the case. We think the showing is sufficient. It is true that the parties were bound to take notice of the fact that, under the statute as it existed after the first of January, a term of the court would occur in that month. It is also true, perhaps, that the judge could not, by a mere parol assurance as to the course which would be pursued in the cause, bind any of the parties or conclude their rights. But an application to set aside a default is addressed to the sound discretion of the court. A sufficient excuse for making the default must be shown; but a mistake, even though it relate to a matter concerning which the party is charged by law with notice, may afford sufficient ground of excuse. So, also, may an assurance by the judge as to the course which will be pursued in the cause, even though unauthorized, if it has in good faith been acted on by the party. It is not necessarily an act of negligence to rely on such assurance. The showing brings the case within the rule of Ordway v. Suchard,...
To continue reading
Request your trial