Spencer v. Berns

• Decision Date: 20 May 1901
• Citation: 86 N.W. 209,114 Iowa 126
• Parties: SPENCER v. BERNS ET UX.
• Court: Iowa Supreme Court

114 Iowa 126

86 N.W. 209

SPENCER

v.BERNS ET UX.

Supreme Court of Iowa.

May 20, 1901.

Appeal from district court, Polk county; W. F. Conrad, Judge.

The plaintiff obtained a judgment by default against both defendants on the 7th day of January, 1899. On the 30th day of March, 1899, Mary A. Berns, the wife of G. T. Berns, filed a motion to set aside the default as to her, on the ground that no notice of suit was ever served on her. The motion was sustained, and the judgment and default set aside as to this defendant. The plaintiff appeals. Affirmed.S. G. Van Auken and H. A. Kroeger, for appellant.

Howe & Miller, for appellees.

SHERWIN, J.

The service on Mary A. Berns was by leaving a copy at her home with one Walter Berns, she not being present. It was claimed, and the trial court so found, that said Walter Berns was not a member of her family, nor of the family of her husband, but that he resided some distance therefrom. This finding of fact by the trial court is supported by the evidence, and we will not disturb it, under the well-settled rule that the trial court has a wide discretion in such matters, which will not be interfered with unless abused. There was no service on Mary A. Berns, and hence the court had no jurisdiction to enter default or render judgment against her. Harmon v. Lee, 6 Iowa, 171;Lyon v. Thompson, 12 Iowa, 183;Le Grand v. Fairall, 86 Iowa, 211, 53 N. W. 115.

The appellant contends, however, that the motion to set aside the default should not have been sustained: (1) For the reason that the said Mary A. Berns did not comply with section 3790 of the Code, which requires the defendant to plead forthwith and file an affidavit of merits. A number of cases are cited in support of this position, but upon examination they will be found to be cases where there was in fact service, but it was in some respect irregular. The rule does not apply where there is no service, as in this case. Arnold v. Hawley, 67 Iowa, 313, 25 N. W. 259;Henkle v. Holmes, 97 Iowa, 695, 66 N. W. 910;Hoitt v. Skinner (Iowa) 68 N. W. 788. (2) Because a motion will not lie to set aside a default. It must be sought “on appeal or by direct proceedings.” A motion to set aside a default is a direct proceeding as much as would be an action in equity. Whetstone v. Whetstone, 31 Iowa, 281; Lyon v. Vanatta, 35 Iowa, 521. But, if the motion were a collateral attack, it would not for that reason be bad, for a void judgment may be thus assailed. Kitsmiller v. Kitchen, 24 Iowa, 163; Lyon v. Vanatta, supra. That a void judgment may be set aside on motion has been held in Allen v. Rogers, 27 Iowa,...