103 Iowa 561 | Iowa | 1897
Lead Opinion
V. We conclude that the application of the appellant was made in due time, and that he showed a meritorious defense to the claim of Nichols, Shepard & Co,, and a contingent right to subrogation which entitled him to relief. It was a proper action in which to settle the claims of the various persons who were interested in the subject-matter of the litigation. The appellant' was a party to the action, and 'affirmative relief had been ashed against him by Nichols, Shepard & Co., and granted. It was his right to be heard in his own behalf before judgment was rendered against him; and, as the company had not notified him of its adverse claim, it was his right, if his affidavit be true, to have the default set aside, and to be heard on- the merits of his claims. The distinct court, therefore, erred in not fully setting aside the default of the appellant, and requiring him to plead forthwith, and issuably. Code 1873', section 2871. Its ruling, so far as it is involved in this appeal, is REVERSED.
Dissenting Opinion
(dissenting.) — The opinion holds that the decree, as between Nichols, Shepard & Co. and Man