Norman v. Iowa Cent. Ry. Co.
| Decision Date | 16 November 1910 |
| Parties | D. C. NORMAN v. IOWA CENTRAL RAILWAY COMPANY |
| Court | Iowa Supreme Court |
Appeal from Hardin District Court.--HON. C. E. ALBROOK, Judge.
ACTION to recover $ 2,000 by way of damages for personal injuries received by plaintiff's wife while she, in company with plaintiff and her children, was a passenger on defendant's train. The petition was filed and notice served December 31, 1908, and on the return day, January 12 1909, which was the second day of the January term of the court, a default was entered against the defendant for want of appearance, and thereupon, proof being offered as to the amount of plaintiff's damages, judgment was on that day rendered against the defendant for the full amount claimed in the petition. On the 15th day of the same month the defendant filed its motion to have the default set aside, supported by affidavits and accompanied with an answer. On February 5th following, plaintiff filed a resistance to this motion supported by an affidavit, and on the same day the defendant filed an amendment to its motion supported by a further affidavit. The plaintiff thereupon moved to strike defendant's amendment and the affidavit in support thereof, presenting an affidavit in support of such motion and, upon an application for an order therefor made by plaintiff, the attorney for defendant who had made affidavits in support of its motion and amendment thereto, was subjected to an examination as to the matters referred to in his sad affidavits. On February 6th the court sustained a motion to strike defendant amendment to its motion to set aside default, and the motion to set aside was overruled. The defendant appeals.
Reversed.
George W. Seevers, W. H. Bremner, and J. H. Scales, for appellant.
Lundy & Wood, for appellee.
Plaintiff 's resistance to defendant's motion to set aside the default and judgment entered thereon was based upon want of showing of due care and diligence on part of defendant, in interposing a defense, and upon a want of showing of meritorious defense, and the motion to strike defendant's amendment and showing was on the ground that such amendment was not presented in due time. As the amendment was offered before the court had proceeded to a hearing of the original motion and the resistance thereto, we see no reason why it should have been stricken; but, as the additional showing by affidavit in support thereof is fully covered by the subsequent examination in court of the attorney who made such affidavit, there was no prejudice to defendant in such ruling.
The objection that the defense offered in connection with defendant's motion to set aside the default was not sufficient is somewhat discussed by counsel for appellee in argument. But the answer was a general denial, and the showing by affidavits of a reasonable ground to believe that evidence could be introduced establishing freedom of defendant from any negligence in connection with injuries to plaintiff's wife was such that, if the motion had been sustained, no complaint on the part of the plaintiff as to the sufficiency of showing of defense could well have been made on appeal. It was, of course, not necessary to introduce the evidence which would be relied upon for defendant if the default should be set aside, nor to state in detail what the witnesses for defendant would testify to in support of its defense. In the absence of any knowledge as to the nature of the evidence which was presented for the purpose of securing the judgment on default, we are unable to say that the defense which was offered to be made would not have been sufficient to take the case to a jury.
The sole ground stated by the lower court in the record for overruling the motion to set aside the judgment by default was the absence of a showing of sufficient care and diligence on the part of the...
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