Palmer v. Rodgers

• Decision Date: 16 December 1886
• Citation: 70 Iowa 381,30 N.W. 645
• Parties: PALMER v. RODGERS.
• Court: Iowa Supreme Court

70 Iowa 381

30 N.W. 645

PALMER

v.RODGERS.

Supreme Court of Iowa.

December 16, 1886.

Appeal from district court, Monona county.

Action upon a promissory note. There was a judgment upon a verdict for defendant. Plaintiff appeals.McMillan & Kendall, for appellant.

Joy, Wright & Hudson, for appellee.

BECK, J.

1. At the appearance term of this cause a judgment by default was entered against defendant. Upon his motion, the judgment was set aside at the same term, and the cause was continued to the next term, when a trial was had to a jury, and verdict and judgment were rendered for defendant.

2. Plaintiff now insists that the district court erred in setting aside the judgment upon the default, for the reason that the application therefor failed to allege facts showing that defendant had a meritorious defense in the action. All that is said as to his defense is found in the following language used in his affidavit accompanying his motion, viz.: “I do further state that I have a good and meritorious defense to the entire cause of action.” This court has held that, to comply with the statute, (Code, § 2871,) requiring the party in default to file an “affidavit of merits,” the defendant against whom the default was entered must set out and show the facts constituting the defense which he claims to be meritorious, to the end that the court itself may adjudge whether, indeed, it be so. In the absence of such showing in this case, it was error to set aside a default. Jaeger v. Evans, 46 Iowa, 188;King v. Stewart, 48 Iowa, 334.

3. Counsel for defendant maintain that, as plaintiff did not except to the order setting aside the default, he cannot object to it in this court. They have their position, as to the fact of the absence of exception, upon an amended abstract filed by defendant. This abstract presents copies of the judge's docket, and of the judgment as found in the record. Neither shows an exception to the order setting aside the default. But it is not alleged in the amended abstract that there was no such exception. The original abstract does allege that there was, and it avers that a bill of exceptions was taken in the case, which shows all the matter claimed to be found in it. We will, upon this showing, presume that proper exception were shown by the bill of exceptions. Defendant's amended abstract does not put in issue the fact of the exception.

4. Counsel for defendant further maintain that plaintiff does not appeal from the order setting aside the default, the appeal being from the final judgment only. But the appeal from a final judgment brings up for review all...