Western Grocer Co. v. Glenn

• Decision Date: 20 June 1939
• Docket Number: 44843.
• Citation: 286 N.W. 441,226 Iowa 1374
• Parties: WESTERN GROCER CO. v. GLENN, Judge.
• Court: Iowa Supreme Court

286 N.W. 441

226 Iowa 1374

WESTERN GROCER CO. v. GLENN, Judge.

No. 44843.

Supreme Court of Iowa.

June 20, 1939

Certiorari to District Court, Dubuque County; Milton J. Glenn, Judge.

This is an original proceeding in this court. Opinion states the facts.

Writ annulled.

John J. Kintzinger, of Dubuque, for petitioner.

MITCHELL, Chief Justice.

This is an original proceeding in certiorari to test the validity of the ruling of the District Court of Dubuque County Iowa; Hon Milton J. Glenn, Judge.

On December 19, 1938, there was filed in the office of the clerk of the District Court of Dubuque County, Iowa, a petition at law in which the Western Grocer Company prayed for judgment against Joe Costa in the amount of $223.35 for merchandise sold to him. The service of the original notice was claimed to be made by substituted service on the 17th of December. Some question is raised as to whether the service was properly made. We do not find it necessary to pass upon that question. The return day was January 3, 1939, and on that day default was entered. On January 4, 1939, Joe Costa filed a motion to set aside the default which came on for hearing on the 12th of January, 1939. Both sides were represented at the hearing by counsel. The Court sustained the motion and set aside the default and judgment, to all which the Western Grocer Company excepted. It was from the order setting aside the default and judgment that this writ was sued out.

In the case of First National Bank v. Federal Reserve Bank, 210 Iowa 521, 231 N.W. 453, 456, 69 A.L.R. 1329, this court said: " It is the policy of the law that every cause of action should be tried upon its merits; that every party to an action shall have his day in court." With that thought in mind we proceed to consider the case at bar.

The service of the original notice was by substituted service that the defendant Joe Costa was not able to read English that he took the notice to a friend who called up an attorney and asked for an appointment with him. That the attorney was engaged in some work and told Costa's friend to bring Costa with him to the court house on the afternoon of January 3, 1939, the return day. The attorney was not informed as to the nature of the consultation they desired with him. It was three:thirty before he got a chance to see Costa. The attorney went to the clerk's office and found that the default had been entered. Immediately a motion to set aside the default and judgment was prepared attached to which were affidavits setting out the facts and on the morning of January 4, 1939, it was filed. A hearing was held on the 12th day of January, 1939, counsel for both sides being present. The court sustained the motion and set aside the default and judgment. The Western Grocer Company excepted to the ruling. On the 13th day of January 1939, Costa filed a motion attacking the petition.

In the case of Dickson Fruit Co. v. District Court of Sac County, 203 Iowa 1028, 213 N.W. 803, 804, this court was confronted with a similar situation. In annulling the writ this court said:

" We are not concerned, in the instant proceeding, with the jurisdiction of either the parties or the

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