91 Iowa 325 | Iowa | 1894
I. The facts in this case are that plaintiff commenced an action before a justice of the peace, against defendant. An original notice was issued, and placed in the officer’s hands for service. He made duo and proper service of it, except that in the copy which he gave the defendant he spelled the defendant’s name“Huhn” instead of “Kuhn.” His return showed proper service on defendant by the correct name. On; the return day, defendant not appearing, judgment was rendered by the justice against him. Within the-time allowed by law, defendant appeared, and filed a-motion and affidavit to set aside, the default because of' said error, and claiming that by reason thereof no-notice of the pendency of the action had been served upon him. To this showing he attached the copy off the notice left with him by the officer, in which his-name was given as “Huhn.” Whereupon, the justice-set aside the default, and set a time for the trial of the-cause. From the justice’s ruling, a writ of error was-taken to the district court, which sustained the writ, reversed the action of the justice, and remanded the: case to the justice, with instructions to overrule and deny the motion and application. To this order and judgment, defendant excepted, and obtained from the judge a certificate embodying the above facts, and setting forth the following questions of law, upon which, the opinion of this court is desired: 11 First. Did the justice of the peace err in setting aside the judgment by default, and granting a retrial of the cause! Sec
II. Our statute relating to the powers of justices ■of the peace provides: “Judgment dismissing the •cause, or by default may be set aside by the justice at ■any time within six days after being rendered, if the party applying therefor can show a satisfactory excuse.” ■Code, section 3543. Defendant based his application to ¡set aside the default upon the ground that, by reason of "the defective copy left with him, there had been no -such service of notice as gave the justice jurisdiction to •enter judgment in the case. Now, the notice given to the officer, and the return thereon, showed that defendant was sued by his right name, and that the notice was “read to and in the presence and hearing of William H. Kuhn,” etc. It is clear that, upon the notice -and return, the justice was warranted in rendering .judgment as he did. Was there a satisfactory excuse for setting it aside? It was said in Stivers v. Thompson, 15 Iowa, 2: “Very much is necessarily left to the discretion of the justice in judging of a satisfactory ■excuse. Unless it has been clearly abused, there should be no interference with its exercise.” Now, the facts ■set forth upon which the motion to set aside the default was based do not show, or even tend to show, that •defendant was in any way misled, whereby he failed to ■appear on the return day and make defense. See Browning v. Gosnell, 91 Iowa, —, 59 N. W. Rep. 340. There is mo claim that, by the reading of the notice to him by the
