165 Iowa 302 | Iowa | 1914
I. Suit was brought in the district court of Madison county for several promissory notes held by plaintiff, Fox, against Mary A. Nolan and W. H. Glynn, the makers. Separate answers were filed by the defendants; that of Mary A. Nolan pleading want of consideration as to herself, with other defenses not material to the questions now presented. The answer was filed May 7,1912.
Trial notice for the October, 1912, term of the court was duly filed by plaintiff’s attorneys more than ten days prior to the opening of the term. In the printed bar docket for the term this case appeared among those noted for trial. The cause was assigned for trial on October 10th, and defendant not appearing, nor her counsel, default and judgment were entered against her. Afterwards, and during the term, motion was filed to set aside the judgment as to Mary A.
III. The second alleged error is in not submitting the issues to a jury. Either party to an action at law is entitled to a jury trial, but such right may be waived. Code, section 3733, provides that trial by jury may be waived by a party by suffering a default or by failing to app.ear at the trial. The defendant made no appearance on the day the cause was noted for trial, and the amendment to the abstract shows that the assignment was regularly made, and alsó that the required trial notice had been served. There was such failure to appear as constituted a waiver of the right to a trial by jury-
There was no error, and the judgment is — Affirmed.