Dixon v. Brophey

29 Iowa 460 | Iowa | 1870

Beck, J.

1. Default : practice. I. The judgment was improperly set aside by the justice. The defendant did not show a satisfactory excuse for his default. It is based upon an alleged understanding between the parties to delay the time to a future day. This understanding was not communicated to the justice, and is not very satisfactorily established or clearly stated in defendant’s affidavit. Agreements of this character made orally and not communicated to the court, whose action they are intended to govern should be treated with little favor.

l. justice ov JSgmentCon appea' II. The circuit court rendered judgment against defend-ant for the amount found due by the judgment of the justice. This it authorized by Revision, section 3944.

3. wniT 03? ySbyattorney: peace III. A motion to quash the writ of error made by defendant was overruled. The first ground of the motion is that the affidavit for the writ was not sworn to by plaintiff, but by his attorney. It is not necessary that the party asking for the writ make the affidavit. The affidavit shows that the attorney was sufficiently acquainted with the facts to enable him to make the necessary statement.

The second ground of the motion is, that the affidavit does not show plaintiff resisted the motion to set aside the judgment, or excepted to the same, or that he did not appear and consent thereto. The first two of these objections suggest acts that were quite unnecessary in order to enable plaintiff to correct the error of the justice. As the judgment could have been set aside without notice to plaintiff (Stivers v. Thompson, 15 Iowa, 2,) it will not be presumed that he was notified of the motion, or was present when the order was made. As to the last of these three objections, it will not be presumed that plaintiff did consent to setting aside the judgment: the avex-ment that he did not is unnecessary.

The third and last grounds of the motion are : 1. That the affidavit does not show that plaintiff is aggrieved by the error of the justice. This is very apparexxt without any averment of that kind in the affidavit. 2. That it is not shown plaintiff applied to the justice to correct the error complained of. This is quite as unnecessary as the other matters which the motion suggests and makes the foundatioxi of objection.

The foregoing views sufficiently answer all the objections raised by appellant.

Affirmed.