192 Iowa 1042 | Iowa | 1922
Before going to that, it may be well to state, as briefly as may be, other proceedings had herein prior to the default. On February 15, 1915, defendant demurred to the petition. On May 17, 1915, the court ordered that the case should be dismissed, if it was not noted for trial at the next term of court. On June 1st thereafter, that order was set aside. The case then
Defendant did not take advantage of plaintiff’s default. The case rested quietly during this time, and almost without any disturbance. During that time, the cause was once continued and once dropped from the calendar at plaintiff’s cost, with leave to reinstate. Thereafter, plaintiff moved to reinstate the case, which motion was sustained. During the time stated, plaintiff filed three or four trial notices, although he was himself in default, and the case was not at issue. Defendant’s application to vacate was amended, as was th§ plaintiff’s answer thereto. Five or six witnesses were examined in open court. A number of exhibits were introduced in evidence, and two affidavits by plaintiff’s attorneys were made part of their resistance to defendant’s petition to vacate. The defendant contends that plaintiff violated the written stipulation, and that it was misled thereby,.— or rather, its counsel. Defendant also shows that it was misled by the other proceedings had, prior to the default judgment, by plaintiff’s failure to cause the issues to be made up, and by the further fact that, during all this time,,and down to a time in 1920, there was talk among the three parties, plaintiff and the two banks, to settle the matter, each of the three to lose one third of the $1,000; that defendant’s counsel was lulled into a sense of security by the conduct of plaintiff and his attorneys.
The application and the evidence are too long to refer to, except in a brief manner, which we shall attempt to do. The evidence of defendant’s counsel is that he had no actual knowledge of the filing of plaintiff’s amendment, March 21st, though he admits constructive notice by the notation on the notice book, which he says he examined from time to time. He says, however, that he had never seen this filing; that, during the two
In defendant’s application is a showing of merits. Briefly, the defense is that plaintiff is not the real party in interest, having sold or assigned his interest in the matter to another, and that Craigwiqk, in this matter, was not acting for the bank, but that he was, in fact, the agent of the plaintiff and in his employ, and was acting for plaintiff only; that Craigwiek had been interested in the land trade out of which the deposit grew, and that he had been paid, as such agent, $400 in money as commission; that the bank had nothing to do with it, and assumed no responsibility for it; and that, if plaintiff’s own agent violated his instructions, and used the papers in a deal with the savings bank, this defendant is not responsible. The facts upon which such defense rests are set out in the application.
We deem it unnecessary to go into the evidence in further detail. Mr. Henderson’s affidavit or evidence is not disputed in the essential points, though there is some conflict as to some
in one. Dolph v. Wortman, 191 Iowa 1364. The statutory requirements seem to be somewhat different where the application is made during the same term (Code Section 3790) and where the application is made, as here, at a later term (Code Section 4097). After the default is set aside, the case will be tried on the merits. But it is not contemplated that the merits of the defense or the ease shall be tried out on the application to vacate the judgment. A prima-facie showing is all that is required. Johnson, Lane & Co. v. Nash-Wright Co., 121 Iowa 173, 182.
2. Numerous cases are cited by appellant to the proposition that mere negligence of one’s attorney is not ground for setting aside a default, and that judgment should not be vacated in favor of one who fails to show that he has a defense to the action. These legal propositions are not disputed. The trial court found that there was a sufficient showing to excuse defendant’s default, and as to the merits. Considering the stipulation that was entered into between the attorneys, plaintiff’s default and delay, the negotiations for settlement, and all the circumstances in the ease, some of which have been before stated, we are of opinion that the trial court did not abuse its discretion in setting aside the default and granting a new trial. The showing as to defendant’s excuse for the default and as to the merits was sufficient. As sustaining our conclusion, see Wallace v. Wallace, 141 Iowa 306; Bennett v. Carey, 72 Iowa 476; Fogarty v. Battles, 145 Iowa 61; Oviatt v. Oviatt, 174 Iowa 512, 521; Reilley v. Kinkead, 181 Iowa 615.
3. The trial court has a large discretion in ruling on an
4. As we understand the record, defendant filed its answer on the same day that the petition to vacate the order was filed, and tendered answer by attaching a copy to the application. The terms imposed by the trial court in vacating the judgment were that judgment was rendered against defendant for the costs until that time. The order does vacate the judgment, and permits defendant to defend, and sets the case down for trial at the next term. It made no reference to filing answer by defendant. Since appellant contends that the answer was prematurely filed, appellee is now given leave to refile the answer; or perhaps counsel may agree that the answer already filed may be so considered.
The judgment and order of the district court is — Affirmed.