Worth v. Wetmore

• Decision Date: 19 January 1893
• Citation: 54 N.W. 56,87 Iowa 62
• Parties: WORTH v. WETMORE ET AL., (THREE CASES.)
• Court: Iowa Supreme Court

87 Iowa 62

54 N.W. 56

WORTH

v.WETMORE ET AL., (THREE CASES.)

Supreme Court of Iowa.

Jan. 19, 1893.

Appeal from district court, Polk county; Charles A. Bishop, Judge.H. E. Long, for appellant.

St. John & Stevenson, for appellee.

KINNE, J.

1. March 4, 1890, plaintiff filed his petition in the district court of Polk county, making Ira P. Wetmore, Abbey Scribner, and others defendants, and asking judgment against said Wetmore, as the maker of a promissory note, and a decree of foreclosure of a mortgage securing it against all the defendants. The mortgaged property was described as “the south sixteen feet of the north twenty feet and four inches of lot thirty-six (36) in York's addition to Des Moines, Iowa.” Said petition also averred that the other defendants were purchasers of said property from the defendant Wetmore, and that they had assumed and agreed to pay the note and mortgage referred to. The petition prayed that, in the event the mortgaged property failed to sell for sufficient to pay the debt, a general execution might issue against the property of the defendants to satisfy any unpaid balance. On the 16th day of April, 1890, it being during the April term of said court, the case came on for hearing. All of the defendants made default, and a judgment was rendered against Wetmore, and a decree forclosing the mortgage against all the defendants. In this decree the following words are added to the description heretofore given: “Being York's subdivision of lot five of official plat of N. E. 1/4 of sec. 9, twp. 78, range 24 west, 5 P. M, Iowa.” This decree was duly signed by the judge. August 20, 1890, and after the close of the April term of 1890 of said court, Abbey Scribner filed a motion to set aside the decree for the following reasons: “(1) Because the same attempts to describe property other and different from that described in the petition or notice served upon her in this case; (2) because the same is against property upon which defendant Abbey Scribner has a first and prior lien, of which relief she has never had notice; (3) because the said decree was entered without any power or jurisdiction in the court to render the same; (4) because the same was irregularly and erroneously entered, especially as to the defendant Abbey Scribner, for the reason set forth and appearing in the affidavit of J. M. St. John, which is attached to this petition, and made a part hereof.” There was filed with the motion, and in support of it, an affidavit of J. M. St. John, verified September 29, 1890, showing that the copy of the petition filed in the case for the use of defendants did not name Abbey Scribner as a defendant; that the description of the mortgaged property was the same as in plaintiff's mortgage and in his petition; that he knew Abbey Scribner was a judgment creditor of Wetmore junior to the plaintiff's mortgage; that he knew she held a mortgage on “lot 36 of York's subdivision of lot 5 of the official plat of the northeast 1/4 of sec. 9, twp. 78, R. 24 west, 5 P. M.,” and other property, to secure a large sum of money, and which was given and filed prior to the date of plaintiff's mortgage; that the description in plaintiff's mortgage and petition was different from that of Abbey Scribner's, and he believed that the property was not the same; that plaintiff's attorney, prior to the return day in the case, told affiant that he made Abbey Scribner a party because of her judgment against Wetmore, and that said attorney in said conversation led him to believe that the mortgage he was foreclosing did not cover the same property as that covered by the Scribner mortgage; that he did not see the decree until August 2, 1890, when he found it was so framed as to include the same property on which Abbey Scribner held prior mortgage. The affidavit contains other statements which we need not set out. September 29, 1890, the motion of Abbey Scribner came on for hearing, and evidence was taken as to the matters set out in the affidavit; and on October 4, 1890, the court (Judge Bishop) sustained the motion, did not set aside the decree, but amended it by providing that it should not prejudice the rights of Abbey Scribner under a prior mortgage upon the same and other property. Plaintiff excepted to the action of the court, and appeals. It is proper to say that the original judgment and decree were rendered by Judge Hindman.

2. Our statute provides that “default may be set aside on such terms as the court may deem just, among which must be that of pleading issuably and forthwith, but not unless an affidavit of merits be filed, and a reasonable excuse shown for having made such defaults, nor unless application therefor be made at the term in which default was entered, or, if entered in vacation, then on the first day of the succeeding term.” Code, § 2871. Technically speaking, the motion was not to set aside the default, but the decree. If, however, we should treat it as a motion, in effect, to set aside the default, it was ineffectual for that purpose. To set aside a default by motion, the motion must be made at the term at which the decree was entered. In this case it was not made until after the close of that term. One moving to set aside a default under this section must accompany the application with an answer. Thatcher v. Haun, 12 Iowa, 303;Brunson v. Nichols, 72 Iowa, 763, 34 N. W. Rep. 289. And see King v. Stewart, 48 Iowa, 334. No answer was presented.

3. Had the application to set aside the default been made in time, and had it been in all respects as required by the statute, still the court would not have been justified in amending the decree as it did. The setting aside of the default would open the case for the filing of an answer, after which evidence should have been received touching the matter in controversy.

4. In this case the court proceeded to take testimony as to the merits of the defense. This it had no right to do, under an application to set aside a default by motion. We have heretofore held that, if the affidavit of merits shows a good defense, there can be no further inquiry as to the truth of the defense. Joerns v. La Nicca, 75 Iowa, 709, 38 N. W. Rep. 129. In other words, when the application is by motion, and the applicant shows a reasonable excuse for having made default, and also shows by affidavit that he has a meritorious defense to the plaintiff's claim, or some part of it, and presents his answer, the court must pass on the question of setting aside the default on the showing thus made. It cannot take testimony to establish the truth of the facts alleged in the affidavit of merits. To take testimony as to the matters set out in the affidavit, as was done in this case, is in effect trying the defense before the court has determined, by setting aside the default, that the defendant shall be heard to make a defense.

5. If we treat the application as a motion, the court had no power to amend the decree in the manner it did. If the applicant had in all respects complied with the law, the court could only have set aside the default, and heard the case on its merits, on the filing of an answer. It proceeded to take testimony and amend the decree in the absence of any pleading filed by the defendant, and hence in the absence of any issue made. Furthermore, the defendant, being in default, was not entitled to introduce evidence in any event while such default stood. Code, § 2873; Kinne, Pl. Pr. & Forms, § 633,...