140 Iowa 389 | Iowa | 1908
— The judgment which appellants asked to have set aside on the ground of unavoidable casualty or misfortune preventing the defendant from defending (see Code, section 1091, par. 5) was rendered on September 20, 1907, upon failure of Schlueter, who was the sole defendant of record in the action, to appear after the issues were made up presenting an admission by said defendant of plaintiff’s cause of action and an affirmative defense and counterclaim. The same judgment was rendered also against the Illinois Surety Company at the same time as surety on a bond given by Schlueter to discharge attachments levied on property in the action. •Such a judgment.without making the surety a party,to the action or giving him notice that such judgment is to be rendered is provided for by Code, sections 3907, 3908. On the 27th of the same month the two judgment defendants filed separate motions .to set aside the judgment, which
This letter was received by. Schlueter in Denver on the evening of September 17th. On the morning of the 18th he submitted it to attorneys in Denver, who advised him that he could rely upon Cheshire’s looking after and protecting his interests, and he therefore believed it to be unnecessary for him to go to Des Moines or take any steps in the matter of litigation at that time, and he did nothing with reference thereto until after the judgment was rendered on the 20th. Notwithstanding the advice which he says was given to him by attorneys in Denver, we think Schlueter was unequivocally informed of Cheshire’s withdrawal of his appearance in the litigation, -and that it was his duty to proceed with all practical diligence to appear in person or by other counsel, if he desired to have his defense and counterclaim presented to^ the court. Perhaps the circumstances would have justified the court in postponing the trial had Schlueter appeared and asked for such postponement in order to enable him to present a defense, with a showing which would .satisfy the court that there was reasonable ground to believe that with proper opportunity such defense could be made. Put even as to this possibility it is to be said that plaintiff had been for some time insisting on the trial of the case, and that neither Schlueter nor his counsel had taken any steps whatever to secure the evidence necessary to sustain the defense pleaded. No witness had been subpoenaed, and, as will be hereafter indicated, defendant had been negotiating for a settlement which had failed only by rea
The cases relied on for appellants are those in which it appears that by reason of the unexpected action of counsel a party has been absolutely prevented from appearing before judgment has been entered against him. See Ennis v. Fourth St. Building Ass’n, 102 Iowa, 520; Peterson v. Koch, 110 Iowa, 19; Ex parte Roundtree, 51 S. C. 405 (29 S. E. 66); Utah Com. & Sav. Bank v. Trumbo, 17 Utah, 198 (53 Pac. 1033). Where the failure of a party to appear is due to his own fault or. neglect of his attorney, he is not entitled to relief. Church v. Lacy, 102 Iowa, 235; Sioux City Vin. Mfg. Co. v. Boddy, 108 Iowa, 538; Williams v. Wescott, 77 Iowa, 332; Robins v. Modern Woodmen, 127 Iowa, 444; Hass v. Leverton, 128 Iowa, 79.
As to the assignments of error on the admission and exclusion of certain testimony over defendants’ objection, it is sufficient to say that the rejected testimony is in the record, and could not, if received, have affected the result,-
The judgment and rulings of the trial court, so far as they are subject to review on these appeals, are, .as to each of the judgment defendants, affirmed.