166 Iowa 559 | Iowa | 1914
I.'In January, 1905, Mort Bros., a co-partnership engaged in the hardware business at Beatrice, Neb., being then insolvent, executed an instrument conveying their property to Prank A. Bixby, of Council Bluffs, Iowa, as trustee for the use and benefit of all their creditors. The
II. The petition for a new trial was filed after the term at which judgment was entered under that provision of Code section 4091, which authorizes a judgment to be set aside for
III. The superior court is, by Code, section 263, governed
In any case once continued, where an answer is on file, either .party desiring to bring such cause on for trial at any term shall, at least ten days before such term, file with the clerk a notice of trial, and no cause shall stand for trial unless a trial notice be so filed, except by consent of parties.
The present case, as shown by the record, had been continued over several terms, answer was on file at a term previous to that at which default judgment was entered, and no trial notice had been filed for that term. The cause therefore did not then stand for trial, and there was no consent that it should be tried. It is urged by the appellant that as the cause was regularly assigned for trial on the call of the calendar for the term, that such assignment met or obviated the requirement as to a trial notice. Had such been done when counsel for the appellee was present, and without objection by him, such would, no doubt, have come within the exception of the statute as to trial by consent of both parties. Such, however, does not appear, and the case clearly came within the rule of the statute, and was not for trial at that term. National Loan & Inv. Co. v. Bleasdale, 159 Iowa, 529.
Y. But we may properly consider the further question presented in the record as to the alleged unavoidable casualty and misfortune which prevented the party from being repre-
We conclude that the trial court committed no error in