55 Iowa 437 | Iowa | 1880
The appellant construes the word answer, used in this notice, in its technical sense of filing an answer, as distinguished from a demurrer or a motion. We think, however, that as used in this connection the word means to respond in any manner, either by motion, demurrer or answer. The defendants were
It cannot be held that the notice is insufficient to confer upon the court jurisdiction of the case. The default was properly entered.
II. The default being properly entered it could not be set aside without the filing of an affidavit of merits. Code, § 2871. No affidavit was filed. There was, therefore, no error in overruling the motion to set aside the default.
The whole subject of the admissibility of books of account to prove the charges made therein was very fully considered in Veiths v. Hagge, 8 Iowa, 163 (183). See, also, Young v. Jones, 8 Id., 219; Cummings v. Hull’s Adm’r, 35 Id., 253 Karr v. Stivers, 34 Id., 123; 1 Greenleaf on Evidence, section 118 and notes. The rule deduced from these authorities is that books of original entries are not admissible for the purpose of proving the payment of money, unless the payment of money comes within the ordinary business
There is in this State no limitation, as in some states, of the amount of the charges of money paid which may be proved by the party’s books of account. It may, perhaps, be conceded that most of the charges entered upon plaintiff’s books are, under our statutes, proper subjects of book account. The petition alleges that the defendants entered into a verbal agreement with the plaintiffs, wherein the defendants were to ship their live stock to the plaintiffs, in consideration of which plaintiffs were to advance to defendants moneys on said shipments before the arrival of stock.
The first specification contained in plaintiffs’ petition is as follows: October 16, 1879, plaintiffs advanced to defendants by express, pursuant to said agreement, $1,200. This was before the plaintiffs, as shown by the books, received the proceeds of any shipments made by the defendants. Books of account have been held inadmissible to prove a special agreement, or a delivery of goods under such agreement. Pritchard v. McOwen, 1 Nott; & McC., 131; Nickle v. Baldwin, 4 Watts & Sug., 290; 1 Greenleaf on Evidence, section 118, note 1. We think this transaction cannot properly be proved by the plaintiffs’ books. This one item is larger than the balance claimed by plaintiffs.
The following specifications also appear in plaintiffs’ petition: October 22, 1879, plaintiffs, upon the order of defendants, paid W. K. Boardman $135.’ December 29, 1879, plaintiffs paid to defendants $20, on-order to Eastman. February 5, 1880, plaintiffs paid defendants $400, by order to S. O. Ilorton. These items, we think, were not provable by the books. Account books are not admissible to prove the
Reversed.