42 Iowa 608 | Iowa | 1876
The amended petition in this case was filed on the 23d day of January, and it was incumbent upon defendants to plead thereto before noon of the next day. The court, however, extended the time, not of pleading generally, but of filing an answer, and allowed defendants to answer within thirty days. In doing this, the com’t, under Sec. 2638, above quoted, was required to have due regard to making up the issues at the earliest day possible. The court, probably, would not have felt justified in granting so long a time for demurring to the petition, and the record does not show that any extension of time for that purpose was granted.
By asking and obtaining this time to answer, the defendants did not waive the right to file a demurrer; but, if they desired to file such pleading, they should have done so before noon of the 2éth.day of January. They had no right to take along time to answer, and then toiavail themselves of the extended time for the filing of a demurrer, when the extension may have been granted, as, indeed, seems most likely from the whole record, with the express understanding that at that time an answer only should be filed.
As the demurrer was not filed in accoi’dance with the order of the court, there was no error in striking it from the files; and, as the defendants were without any pleading to the petition when their demurrer was stricken from the files, there was no error in entering a default against them- for want of an answer.
Appellants rely upon the provisions of Sec. 3157 of the Code, which is identical with Sec. 3501 of the Eevision.
• Outside and independently of the provisions of this section, it has been held that a court of equity will grant new trials in actions at law, after the time for applying for relief under this section has elapsed, provided proper reasons are shown for not making such application. Bowen v. The Troy Portable Mill Co., 31 Iowa, 461; Partridge v. Harrow, 27 Id., 97; Haskins v. Hollenbeck, 14 Iowa, 314; Young v. Tucker, 39 Iowa, 596. The petition in this case alleges that the frauds were not discovered until long after the expiration of the year following the judgment. It is clear that this action is not based upon the provisions of section 3157 of the Code, but upon the general jurisdiction which equity exercises to grant relief in cases of fraud. The action is not, under the circumstances alleged, barred in. one year from the date of the judgment.
Appellants in argument also urge that the action was not commenced within five years from the rendition of judgment, But this action is for relief on the ground of fraud, and the action did not accrue till the fraud was discovered. Code, section 2530. The plaintiff alleges that the fraud was not discovered till more than a year after the judgment was rendered. The action was commenced by placing the original notice in the hands of the sheriff, five years and nineteen days after the judgment was rendered, which is shown upon the face of the petition to be not more than four years from the
The several orders of the court below are
Affirmed.