Lyman & Co. v. Bechtel
| Decision Date | 18 December 1880 |
| Court | Iowa Supreme Court |
| Parties | LYMAN & CO. v. BECHTEL & ROSS, AND OTHERS. |
OPINION TEXT STARTS HERE
Appeal from Story circuit court.
The plaintiff is a copartnership, doing business as live-stock commission merchants at Union Stock Yards, Illinois. The defendants were partners, doing business in buying and shipping live stock in Story county, Iowa. On the twenty-fifth of March, 1880, the plaintiffs filed their verified petition, claiming of the defendants a balance due as upon account. Attached to the petition is an exhibit, showing the furnishing of various sums of money to the defendants, amounting in all to $36,382, the shipments of cattle and hogs by the defendants amounting to $35,255.14, and the payment of $65 in cash, leaving a balance due plaintiffs of $1,061.86. The notice required the defendants to appear and answer on or before noon of the sixth day of April, which was in vacation. On April 6, at 1:30 P. M., a default was entered against the defendants, they having failed to appear. After the default was entered, at 2 o'clock P. M. of the same day, the defendants filed a motion for a more specific statement. On the seventh of April the defendants filed a motion to set aside the default, and for leave to file a motion for a more specific statement. The parties, by stipulation, submitted the motion to the judge in vacation, and on the sixteenth day of April it was overruled. On the twenty-seventh day of April, 1880, it being the second day of the regular April term, the cause came on to be heard upon the petition and the exhibits thereto attached, no other evidence being offered by the plaintiffs, and judgment was entered for the plaintiffs for $1,061.86. The defendants appeal.L. Irwin, for appellants.
F. D. Thompson, for appellees.
1. Rules of the court provided that the defendant shall answer in vacation after notice, unless motion or demurrer be filed, and that default may be entered by the clerk in vacation, upon notice as at term, unless the defendant shall make defence. Section 180 of the Code provides that the district and circuit judges may by general rule provide that the time of filing pleadings or motions shall be other than provided in the Code, and that issues shall be made up in vacation, and may adopt such other rules as they deem expedient, not inconsistent with the Code. The original notice in this case concludes as follows: “And unless you appear thereto and answer on or before noon of the sixth day of April, 1880, your default will be entered by the clerk, and at the next April term, 1880, of said court, which will commence on the twenty-sixth day of April, A. D. 1880, will prove said claim against you and judgment rendered thereon.” It is claimed that no default could properly be enteredin this case because the notice limits the rights of the defendants to the filing of an answer. The notice should inform the defendant that default will be entered against him unless he appears and defends. Code, § 2599. The appellant construes the word “answer,” used in this notice, in its technical sense of filing an answer, as distinguishable from a demurrer or a motion. We think, however, that, as used in this connection, the word means to respond in any manner, either by motion, demurrer, or answer. The defendants were advised, both by the law and by the rules of the court, that no default could be entered against them if they appeared within the time prescribed and filed a a motion or a demurrer. They could not have been misled by the notice, and they should have appeared within the time limited and responded in some manner. It cannot be held that the notice is insufficient to confer upon the court jurisdiction of the case. The default was properly entered.
2. The default being properly entered it could not be set aside without the filing of an affidavit of merits. Code, § 2871. No affidavit was filed. There was therefore, no error in overruling the motion to set aside the default.
3. The plaintiff introduced no evidence in support of his claim. Chapter 36, of acts sixteenth general assembly, provides “that in all actions for money due upon an open account, when the defendant has been personally served with the original notice therein, and the petition is duly verified, and when a bill of particulars of said account is incorporated into or attached to the petition, if the defendant makes default, or fails to controvert or deny the same, or any of the items thereof, by pleadings duly verified, the account, or so much thereof as is not so controverted or denied, shall be taken as due and admitted.” It is insisted by the appellants...
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