Sioux City Vinegar Mfg. Co. v. Boddy

• Decision Date: 23 May 1899
• Citation: 79 N.W. 350,108 Iowa 538
• Parties: SIOUX CITY VINEGAR MFG. CO. v. BODDY ET AL.
• Court: Iowa Supreme Court

108 Iowa 538

79 N.W. 350

SIOUX CITY VINEGAR MFG. CO.

v.BODDY ET AL.

Supreme Court of Iowa.

May 23, 1899.

Appeal from district court, Woodbury county; John F. Oliver, Judge.

The demurrer to the petition for new trial was sustained; and, as the plaintiff elected to stand on the ruling, the petition was dismissed, and it appeals. Affirmed.Swan, Lawrence & Swan, for appellant.

A. R. Molyneux and C. A. Plank, for appellees.

LADD, J.

In Boddy against the Sioux City Vinegar Manufacturing Company, judgment by default was entered against the defendant at the September, 1897, term of court; and, after its close, this petition for new trial, on the ground of unavoidable casualty or misfortune, preventing the company from defending, was filed. The demurrer, among other things, questioned the sufficiency of the facts alleged to constitute such casualty or misfortune as is contemplated by the statute. Code, § 4091. The original notice was served on the secretary of the corporation, who was not charged with any part in the management of its affairs, and the pendency of the action was unknown to any one else connected with it. This secretary was also a member of a law firm, though he did nothing in the preparation of pleadings or trials of litigated cases. Having a general knowledge that the claim was disputed, and that the company had a defense, he placed the notice in a box or receptacle in the law office of his firm for the purpose of having one of his partners prepare the defense, draw the answer, and appear in the cause in behalf of the defendant. Through some oversight or accident the notice was misplaced by the secretary, and the attention of neither of the other members of the firm was called to it until after the rendition of the judgment. While the members of the firm other than the secretary left for distant points a few days after the notice was served, it does not appear that he was called away. It is not alleged that, from the mere placing of the notice in the box or receptacle, the other members of the firm would understand, from the usage of the office, that the firm was employed, or what was to be done. Besides, if an answer were to be prepared, something more than the mere handing of notice was essential, and this we must presume was known to the secretary, who was an attorney. He knew he had not been called on for the necessary information by the other members of the firm, and, as they left shortly after the service of the...