Mally v. Roberts

Nov 28, 1914
Reporters:
Before:
Weaver
Weaver, J.

The action is at law to recover upon a promissory note signed by C. A. Roberts and Laura B. Roberts (now *524Hammond) and indorsed by C. J. Myers. ■ The defendant Laura B. Hammond was personally served with notice, but, no appearance having been entered for her, she was defaulted on the second day of the term. Two days thereafter, and within the term, she appeared by counsel and moved to set aside the default and tendered ‍‌‌‌​​‌​‌​‌​​‌‌​‌​​‌​​​​‌​‌​‌​‌​​‌​‌‌​‌‌‌‌‌‌​​‌​​​​​‌‌​​‌​‌‌​​​​​‌​​‌‌​‌‌‌‌‌‌‌​‌‌​‌​​‌​​​‌‌‌‌‌​‌​‍an answer. This motion was sustained over the plaintiff’s objection, and he appeals.

lm vacation^of detion^ ‘sufficiency The setting aside of a default is peculiarly within the discretion of the trial court, and this is especially true where the application is promptly made to the term within which the default was suffered, and the court has reasonable ground to believe that the party defaulted sincerely intends and desires to tender an issue going to the merits of the claim in suit. The exercise of this discretion will not be interfered with or controlled on appeal, except in a clear ease of abuse thereof by the trial court. While the law is not intended to encourage strife or litigation, the courts are not disposed to deny a party the right to be heard upon his cause of action or defense, where he has not forfeited or lost the same by his own clearly established wrongful act or inexcusable ‍‌‌‌​​‌​‌​‌​​‌‌​‌​​‌​​​​‌​‌​‌​‌​​‌​‌‌​‌‌‌‌‌‌​​‌​​​​​‌‌​​‌​‌‌​​​​​‌​​‌‌​‌‌‌‌‌‌‌​‌‌​‌​​‌​​​‌‌‌‌‌​‌​‍negligence. For this reason a clearer case of abuse of discretion is required to reverse an order setting aside a default than where such order is refused. Barto v. Electric Co., 119 Iowa, 179; Westphal v. Clark, 46 Iowa, 263; Deemer’s Pleading & Practice, section 770; Blam v. Shaffner, 37 Ill. App. 394; Davenport v. Ferris, 6 Johns. (N. Y.) 131; Will v. Water Co., 100 Cal. 344 (34 Pac. 830); Gottsberger v. Harned, 2 B. D. Smith (N. Y.) 128; Griel v. Vernon, 65 N. C. 76; Ordway v. Suchard, 31 Iowa, 481; Howe v. Moving Co., 29 Cal. 72; Dodge v. Ridenour, 62 Cal. 276; Alvord v. Gere, 10 Ind. 385.

It is argued by the appellant that in the ease at bar there is no showing of meritorious defense, but we think the objection is not supported by the record. No default was taken against appellee’s eodefendant, C. A. Roberts, who appears and contests plaintiff’s right to recover anything on the note in *525suit. In support of her motion-to set aside the default against herself, appellee avers that ‍‌‌‌​​‌​‌​‌​​‌‌​‌​​‌​​​​‌​‌​‌​‌​​‌​‌‌​‌‌‌‌‌‌​​‌​​​​​‌‌​​‌​‌‌​​​​​‌​​‌‌​‌‌‌‌‌‌‌​‌‌​‌​​‌​​​‌‌‌‌‌​‌​‍she signed the note as surety only for C. A. Roberts, and that he has and is pleading a good defense to the note; that the same was made without consideration • and that said principal defendant has and asserts certain just counterclaims against the plaintiff’s demand. She also denies that the plaintiff is an innocent holder of the note, but alleges that he holds and sues upon said note in secret trust for the benefit of Myers, the payee, in order to avoid defense by the principal maker. These matters, if established by the evidence, constitute a good reason why plaintiff should not enforce the note against the appellee beyond the amount which he shall show himself entitled to recover, if anything, from C. A. Roberts.

2. same. The further point is made that the appellee’s negligence in failing to appear before default entered was so gross and inexcusable that the court could not sustain the ‍‌‌‌​​‌​‌​‌​​‌‌​‌​​‌​​​​‌​‌​‌​‌​​‌​‌‌​‌‌‌‌‌‌​​‌​​​​​‌‌​​‌​‌‌​​​​​‌​​‌‌​‌‌‌‌‌‌‌​‌‌​‌​​‌​​​‌‌‌‌‌​‌​‍motion to set aside without abuse of discretion. We cannot so hold. It is sufficient to say it is clearly shown that both appellee and her counsel intended in good faith to defend the action, and that failure to appear arose from confusion growing out of the fact that several different actions had been brought and were’pending, all involving appellee’s relations, business and otherwise, with the defendant C. A. Roberts, by reason of which counsel by mistake and oversight, not involving grave negligence in his part, overlooked the omission to file answer before noon of the second day of the term, and that promptly thereafter he did appear and secured the order complained of setting aside the default. Under such circumstances, we cannot hold that the court abused its discretion in granting the relief and allowing the appellee an opportunity to defend. The case comes fairly within the rule applied by us in the Barto case, supra. Several ‍‌‌‌​​‌​‌​‌​​‌‌​‌​​‌​​​​‌​‌​‌​‌​​‌​‌‌​‌‌‌‌‌‌​​‌​​​​​‌‌​​‌​‌‌​​​​​‌​​‌‌​‌‌‌‌‌‌‌​‌‌​‌​​‌​​​‌‌‌‌‌​‌​‍of the precedents above cited from other jurisdictions are also quite in point. See, also, Panesi v. Boswell, 12 Heisk. (Tenn.) 323; Seymour v. Elner, 4 E. D. Smith (N. Y.) 199; Freeman *526v. Brown, 55 Cal. 465; Howe v. Mining Co., 29 Cal. 72; Elston v. Schilling, 30 N. Y. Super. Ct. 74.

The record discloses no abuse of discretion by the trial court, and the order setting aside the default of the defendant and permitting her to answer is — Affirmed.

Ladd, C. J., and Evans and Preston, JJ., concur.