Jarvis v. Worick

10 Iowa 29 | Iowa | 1859

StogktoN, J.

Suit upon a promissory note for $1032.29, due July 1st, 1858. The first and second counts of the petition allege that the note was given for the balance due on a purchase of certain real estate, made by defendant of plaintiff, and pray judgment for the amount due on the note, and that the interest of defendant in the land may be sold to satisfy the judgment. The third count contained only the usual prayer for judgment on the note, without any averment that the same was given for real estate, and without any prayer for the sale of defendant’s interest to satisfy the judgment.

There was a demurrer to the petition on the ground that the plaintiff had not averred a tender of a deed for the land, nor any offer to perform the contract; and because the deed Was not brought into court.

The record entry shows that “ the demurrer, after argument, was sustained as to the first count.” On a subsequent day of the term, the cause came on to be heard, and the defendant failing to appear and plead or answer to the petition, judgment by default was rendered against him for the amount found due on the note, but without any order for the sale of his interest in the land. The defendant appeared on the next day and moved the court to set aside the judgment by default and allow him to answer. The motion was supported by the affidavit of defendant, but was overruled by the court. As the demurrer was to the whole petition, and as the third count was not liable to the objection taken, the demurrer should have been overruled, and the defendant can not assign for error that the court did not sustain the same to the second and third counts. The motion to set aside the default was properly overruled. The defendant had appeared to the action by his attorney, on the second day of the term, and filed his demurrer to the petition. On the fourth day of the term, the demurrer being disposed of, and the defendant called upon to answer over to the petition, he made default, and judgment was rendered against him. The only excuse for this default shown by the affidavit is, that defendant was unprepared at the time to furnish his attorney with papers and exhibits necessary to be filed with the answers. That he was not so prepared, is to be attributed to his own want of diligence in preparing his defense. The court exercised a proper discretion in refusing to relieve him from the consequences of his own neglect.

Judgment affirmed.