Kirby v. Gates

• Decision Date: 07 March 1887
• Citation: 32 N.W. 191,71 Iowa 100
• Parties: KIRBY v. GATES & BOWMAN
• Court: Iowa Supreme Court

32 N.W. 191

71 Iowa 100

KIRBY v. GATES & BOWMAN

Supreme Court of Iowa, Des Moines

March 7, 1887

Appeal from Polk Circuit Court.

ACTION for damages alleged to have been sustained by reason of the conversion of certain personal property. There was a judgment for the plaintiff. The defendants appeal.

AFFIRMED.

Cole McVey & Clark, for appellants.

Goode & Phillips, for appellee.

OPINION

ADAMS CH. J.

Judgment was rendered against the defendants by default. Afterwards they appeared, and filed a motion to set aside the judgment and the default, and for leave to answer; which motion the court sustained. Afterwards the plaintiff filed a motion to cancel the order setting aside the default and judgment. This motion the court sustained in part. It allowed the order setting aside the judgment to stand; but the order setting aside the default, and granting leave to answer, it canceled. The plaintiff was then directed to call his witnesses and prove his claim, and the defendants were allowed to cross-examine, and the trial thus had resulted in the rendition of a judgment for the same amount as before. The defendants claim to be aggrieved by the reinstatement of the default, which resulted in a trial upon the plaintiff's evidence alone.

In the first place, it is claimed that there was no proper evidence that the defendants were served with the original notice. The notice purports to have been served by one Pierce, who was not an officer. The return is in due form, and underneath the same is an affidavit in the following words:

"I, Frank Pierce, do on oath say that I served the annexed notice on the defendants, Gates & Bowman, C. H. Gates and A. C. Bowman, therein named, at the time and place and in the manner mentioned in my return thereof.

[Signed] "FRANK PIERCE.

"Subscribed and sworn to by , before me, this fourteenth day of November, A. D. 1885.

"J. COMPTON, Notary Public in and for Polk County, Iowa."

The proof of service is said to be deficient in that the jurat does not contain the name of the affiant; but the jurat shows that what was written for an affidavit was subscribed and sworn to by some one, although the name is not given. It purports, however, to have been subscribed by Frank Pierce and no one else. If Frank Pierce's name had been written by some one without authority, the words written for an affidavit could not in any proper sense be said to be subscribed. We think, then,...