34 Iowa 473 | Iowa | 1872
At the September term, 1870, this defendant, Francis Holborn, obtained a judgment by default, in the district court of Page county, against this plaintiff, for $1,269.46, and costs, upon a promissory note made by said Oliver H. Brewer to the order of the Racine & Mississippi Railroad Co. This action is brought to vacate that judg
In our view of the evidence, the plaintiff has established that be was prevented by unavoidable casualty from defending. There can be no question but that the plaintiff left borne before the suit was brought, expecting to return before the September term of the court; and that be was prevented from so returning by reason of bis own personal sickness; that the service of notice was by leaving a copy with bis daughter at his house, and that she was not at all acquainted with legal matters. No fault attaches, under the proof in this case, to the defendant in that action, for failing to defend. He bad no personal knowledge of the action until after judgment was rendered.
But, the evidence further shows that the first action was brought on a negotiable note, executed by this plaintiff to the Racine & Mississippi Railroad Co., and that, before it became due, it was transferred to one Russell, and by him to one Lathrop, and by him, a few days after maturity, to this defendant. There is not one word of proof showing that Russell was not a bona fide bolder for value, and, even if it be conceded that Lathrop held it as collateral security, and Holborn was charged with notice of defects, because he took it after due, yet either of them would be protected
We might say further, that, under the proofs in this case, we would have to hesitate long, before holding that the facts proved would constitute a defense, even against a holder for value, acquiring it after maturity.
This conclusion is reached after giving due consideration to all the evidence. Although our views do not entirely accord with those expressed by the learned ^district judge, who tried the cause .below, yet we reach the same .conclusion, and order the judgment.
Affirmed.