Sitzer v. Fenzloff
| Decision Date | 21 December 1900 |
| Citation | 84 N.W. 514,112 Iowa 491 |
| Parties | GEORGE D. SITZER, Appellant, v. CHARLES FENZLOFF |
| Court | Iowa Supreme Court |
Appeal from Floyd District Court.--HON. C. H. KELLEY, Judge.
FROM an order sustaining defendant's motion to set aside a default and judgment and grant a new trial, plaintiff appeals.
Affirmed.
J. W Brown for appellant.
Ellis & Ellis for appellee.
The action is to recover compensation for medical services rendered the defendant's son. The original notice was served by plaintiff's son, and due and timely return made to the district court. The petition was not verified, but a bill of particulars attached thereto as an exhibit was verified by plaintiff. This bill did not meet the requirements of section 3623 of the Code in all particulars but, in the absence of timely objection, was sufficient as a bill against defendant's son.
The copy of the petition filed with the clerk did not have a bill of particulars annexed. Defendant failed to appear in response to the notice, and the court ordered judgment against him on default, and directed the clerk to assess the amount thereof. From the itemized statement attached to the petition the clerk assessed the amount due, and entered the judgment as directed. This was at the November, 1897, term of court. After the adjournment of that term, and on the sixth day of December, the defendant filed a motion to set aside the default and grant a new trial, based among other things, on the grounds--First, that the petition was not verified, and did not contain a proper bill of particulars; second, that no copy of petition was filed as required by law, third, that the court had no authority, under these circumstances, to direct the clerk to assess the amount of recovery; fourth, that no proof was offered to show the defendant's liability for the amount of the judgment or for any other amount; and, fifth, that defendant is unable to read English, and understands it but imperfectly when spoken, and did not know that the notice served by plaintiff's son was an original notice, but supposed and understood, from what was said to him by the son, that the paper served on him was simply a claim or demand that he was asserting on the part of his father, and had no thought that it was an original notice. The motion also contained a showing of a meritorious defense. The trial court sustained this motion, and the appeal is from the ruling thereon.
The general rule applicable to such orders is well understood. A fair trial on the merits is the object sought in all judicial proceedings, and, in the absence of negligence on the part of him who is in default, is to be encouraged and secured by the court. When the right to such trial is granted, an appellate court is loath to interfere, and will do so only in case of abuse of the discretion of the trial court. Callanan v. Bank, 84 Iowa 8, 50 N.W. 69; Willett v. Millman, 61 Iowa 123, 15 N.W. 866; Lundon v. Waddick, 98 Iowa 478, 67 N.W. 388; Westphal v. Clark, 46 Iowa 262.
While the form of the application in this case may not have been exactly in consonance with the provisions of the Code--it being a motion--yet, as no objection was...
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