51 Iowa 355 | Iowa | 1879
“State of Iowa, Bremer County — ss.:
“I, Ephraim Kinne, being duly sworn, depose and say that I am the principal attorney for the plaintiffs in the above entitled action; that all of the correspondence had by plaintiffs or tlieir attorney, in regard to said action, has been had with me; that I have the contract of purchase of said engine in my possession (or copy of same); that I believe the above reply to be correct and true; that said plaintiffs are nonresidents of the State of Iowa, and are not now within the State of Iowa.”
On the same day, on motion of the defendant, the reply was stricken from the files because not properly verified; at least that was one of the grounds of the motion. The reply denied “each and every allegation in the answer” except as admitted, and the effect was to put in issue the counter-claim. It did not, therefore, relate alone to the cause of action evidenced by the note sued on; as to which, the note being in his possession, the verification could be made by the attorney. Code, § 2672. The sufficiency of the verification must be tested by the provisions of Code, § 2673. The difficulty here is that the affidavit fails to show the affiant to be competent. Mr. Kinne does not state in the affidavit, as is required, that he ■has any knowledge whatever as to the truth of the allegations in the answer or reply, and herein lies the distinction between the ease at bar and Yoe & Co. v. Nichols, ante, 330.
The abstract states that at the next term a motion was made to set aside the default, which motion, it is shown, was accompanied with a properly verified reply. But the amended abstract states that no motion was filed to set aside the default; that all that was filed was a reply, which was in fact filed in vacation, a few days before the term, without leave, and that no notice thereof was given defendant. This reply was, on motion of the defendant, stricken from the files. As to the correctness of this ruling there can be no doubt, because the plaintiffs were in default, and they could not properly file a reply without leave until the default had been set aside.
. The propriety of granting a default because a pleading has not been filed, or giving time to file the same, rests largely in the sound discretion of the trial court. Carleton v. Byington, 17 Iowa, 579. This must necessarily be so. The prompt and efficient disposal of business in such courts requires it, and this court cannot interfere unless such discretion has been abused. This must be affirmatively shown by the complaining party. The only excuse given why additional time was required was that the attorney concluded no reply was
The court below must have concluded there was negligence, and that the efficient transaction of business required that a necessary rule should be enforced. We should have been as well satisfied if time had been granted, but we are unable to say the discretion reposed in the trial court has been abused. If the refusal to give additional time had been based on any other ground we might regard it differently. But the abuse of discretion must be shown to be gross before we would feel willing to interfere so directly with the proper transaction of business in the trial courts as we must in order to correct the supposed error in the case at bar.
The plaintiffs offered to introduce as evidence a deposition taken by them, but the court refused to receive the same.
It is said that the amount of the counter-claim, as stated in the pleadings, was only four hundred dollars, and that, therefore, it was error to render judgment against plaintiffs for costs, when it was admitted there was six .hundred and fifty dollars and interest for near four years due the plaintiffs. But we think defendant’s counter-claim was alleged to be at least seven hundred dollars, and we are not prepared to say that he could not recover, under the allegations in his pleading, the five hundred dollars paid more than the engine was admitted to be worth.
Affirmed.