Vaux v. Hensal

• Citation: 277 N.W. 718,224 Iowa 1055
• Decision Date: 15 February 1938
• Docket Number: 44205.
• Parties: VAUX v. HENSAL.
• Court: Iowa Supreme Court

277 N.W. 718

224 Iowa 1055

VAUX v. HENSAL.

No. 44205.

Supreme Court of Iowa.

February 15, 1938

Appeal from District Court, Guthrie County; Norman R. Hays, Judge.

An action upon an alleged lost promissory note. Default was entered against the defendant for failure to appear at the time the case was assigned for trial and judgment was entered for the plaintiff. A motion filed later to set aside the judgment was overruled, and defendant appeals.

Affirmed.

John L. Sloane, of Des Moines, for appellant.

Wilson & Harris, of Jefferson, for appellee.

ANDERSON, Justice.

This case was brought in June, 1935, in the district court of Guthrie county, Iowa, upon an alleged lost promissory note. The defenses interposed by answer were: (a) A general denial (b) denial of the execution of the note; and (c) denial of the genuineness of the signature. The case was regularly noticed for trial for the February, 1937, term by the filing of a trial notice on the 15th day of December, 1936; the February term commencing on the 9th day of February, 1937. On the second day of the said February term of court the regular assignment of causes for trial at said term was made and this case was assigned for February 15, 1937, at 10 o'clock a m. A copy of the assignment thus made was mailed to the office of Sloane & Sloane, attorneys at Des Moines, Iowa, on February 10, 1937. Sloane & Sloane maintained an office together in an office building in Des Moines, Iowa, but the attorney John L. Sloane claims that while he and his brother officed together that they are not partners or associated in the practice of law. On the 15th day of February, the day on which the case was assigned for trial, neither the defendant Elmer Hensal, nor his attorney appeared in court. and under the court's instructions the clerk of the court called by telephone the office of Attorneys Sloane & Sloane in Des Moines and informed that office that the case would be for trial at 1:30 p. m. the following day, February 16th. The attorney John L. Sloane admits that he was advised of the assignment of the case and also advised as to the telephone communication from the clerk. On February 16th the case was called for trial by the trial Judge about 1:35 p. m. Neither the defendant nor his counsel were present. The trial court caused the courtroom and courthouse corridors to be paged for the defendant and his attorney, and about 1:45 p. m. the plaintiff was advised by the court to proceed with the trial of the case. At that time the court had no information from the defendant or his attorney as to why they were not present or as to whether they desired to be present and be heard. Counsel for plaintiff thereupon waived the jury, and the jury panel was excused for one week, at which time they were to return to try a case which had been specially assigned for that time. The court entered an order finding the defendant in default for want of appearance and proceeded to hear plaintiff's evidence. After a part of the evidence had been introduced, the proceedings were interrupted by Attorney Sloane, who claimed that he had been delayed in reaching the courthouse and asked that the default be set aside and that he be permitted to make his defense to the plaintiff's claim. The court advised him that if he, Sloane, desired, the court would require the plaintiff to reintroduce his evidence and permit the defendant to make his defense, but that the trial must proceed before the court without the intervention of a jury, for the reason that the jury had been dismissed and that the case could not be tried at the present term of court to a jury. This the defendant's counsel refused to do, and, after some colloquy between the court and the defendant's counsel, the defendant's counsel left the courtroom. The evidence was completed upon the part of the plaintiff, and judgment was entered against the defendant for the amount of the promissory note involved with interest and costs. Nothing further appears to have occurred until about six weeks after the rendition of the judgment above mentioned, when on March 24, 1937, the defendant filed a motion to set aside the default and judgment, which motion was later submitted to the court and overruled. The defendant has appealed and alleges that the court erred in entering the so-called default for nonappearance against the defendant and permitting the plaintiff to prove his case, and further alleges that the court erred in overruling defendant's motion to set aside the default and the demand for a jury trial.

It may be that the order made by the trial court is not technically a " default," although such language has been repeatedly used by the trial courts in similar circumstances and its use has been sustained by this court. We had the same question before us in Fox v. Nolan, 165 Iowa 302, on page 304 of the opinion, 145 N.W. 491, 492, where we said " Technically the appellant was not in default, as she had answered. But, applying the term more broadly, there was no action taken by her for the further assertion of her rights, and, when the cause came regularly on to be heard, the plaintiff was entitled to a trial. The entry of the trial court is entitled ‘ default and judgment.’ It recites the failure of the defendant Mary A. Nolan to appear in person and by counsel. Suit was...