78 Iowa 688 | Iowa | 1889
-The plaintiff does not complain that the court erred in any ruling made in the trial of the cause on its merits. His claim for a reversal of the judgment is that the court erred in sustaining a motion of the defendant to set aside a default allowed upon am amendment to the petition. The facts in connection-therewith are as follows : The original petition averred,, in substance, that the defendant negligently permitted a gate at a private crossing to remain open for a longtime, and that plaintiff’s horse entered upon the railroad track through said open gate, and was killed by a-train, ‘ ‘ the fence being then and there defective. ’ ’ There-was an answer filed to this petition, the said answer being a general denial. Afterwards the plaintiff filed a second count to the petition, by which recovery was sought for killing the same animal, and the negligence complained of was “neglect and failure to keep and maintain a lawful fence at or near where the mare was killed.” A few days after this amendment was filed the plaintiff’s counsel appeared in court in the absence of the defendant’s counsel, and demanded a default for want of an answer to the amendment to the petition. A default was entered, but no judgment rendered thereon. Some five days after the default was entered the defendant appeared, and filed a motion to set aside the default. We do not think it necessary to set out nor discuss the merits of the motion, nor of the excuse by defendant for not answering the amendment to the petition. It is
Supplemental Opinion.
The plaintiff, in a petition for rehearing, insists that the foregoing opinion is inconsistent with the opinion of this court in the case of Palmer v. Rogers, 70 Iowa, 381. In that case it appeared that a judgment was rendered for the plaintiff' upon a default. The court set aside the default and judgment upon an insufficient showing of merits. This was held to be ertfor. It is true that in that case, as in this, there was a trial after the default was set aside, which trial resulted in a judgment for the defendant; but in the case at bar no judgment was rendered on the default. We do not determine in the foregoing opinion that an erroneous fuling upon a motion to set aside a default and judgment may not be error, even when, upon a trial, there was a judgment for the defendant. We repeat what is said in the opinion, that “it is apparent on the face of the pleadings on file, and the showing made to set aside the default, that the court did not abuse its discretion in making the ruling complained of ; ” and the statement of the facts in the opinion shows that no default should have been entered, because the amendment to the petition upon which the default was entered did not change the issue. This was thought to be so
Overruled.
