55 Iowa 302 | Iowa | 1880
That a default in an ordinary action will not be set aside, in cases where there has been negligence of the party or his attorney, is probably true. At least it will be so conceded.
In Parmenter v. Childs et al., 12 Iowa, 22, where a default against a garnishee was under consideration it was said by Wright, J., that: “Negligence will not be tolerated in such cases any more than in ordinary cases.” That is to say, when negligence appears the same result must follow. But it was not determined that the same matters would constitute negligence in both classes of cases. There are differences between them which are entitled to consideration.
In one an indebtedness is claimed and alleged. This is well understood by the defendant when he is notified to appear and answer. In the other the garnishee is notified to appear and answer touching his indebtedness. When he does appear the plaintiff must propound interrogatories to him. The garnishee may demand that this be done. Instead of
We are not prepared to say, and it is unnecessary to do so, that a simple showing by the garnishee he was not indebted would be sufficient to prevent the issuance of an execution, nor are we on the other hand prepared to assent to the doctrine that the same showing of diligence must be made before a default against a garnishee can be set aside as would be required in an ordinary action.
In respect to defaults against garnishees a discretion is reposed in the court below, and a stronger case should be required before the appellate court would interfere where a trial has been given on the merits, than where it is denied. Westphal, Hinds & Co. v. Clark, 46 Iowa, 262.
If there were doubts as to the,truth of the affidavit the court could, and no doubt would, on application of the plaintiff have required the garnishee to appear for the purpose of cross-examination. Code, § 3695.
The court below concluded, from the showing made, the defendant had not been guilty of negligence. It may be if the court had found otherwise we should not have interfered. Be this as it may, if the defendant without negligence on his part forgot the day he was notified to appear, and did not appear for this reason alone, we do not think ho was guilty of negligence. The fact he forgot when he was to appear may or may not be negligence, and as the court has found it was not, we would not be justified under the circumstances in saying the discretion reposed in the court had been abused.
Affirmed,