29 Iowa 510 | Iowa | 1870
The rules of the district court prescribes no time in which parties, in cases where demurrers are sustained or confessed, shall answer or file amended pleadings. Neither was there a special rule or order, in this case, requiring defendant to answer within a certain time. There is no statutory provision upon the subject.
Revision, section 3148, provides, that if an answer is held insufficient upon demurrer, and the defendant fails to answer further, “ as required by the rules of, or by the court,” judgment by default may be rendered against him. The confession of a demurrer by the party against whose pleading it is directed, operates as a judgment of the court sustaining it. The case before us, then, is the same as one where a demurrer to an answer is sustained by the court. A default, therefore, for want of a further answer, could not have been entered until the expiration of the time prescribed by general or special rule of the court. § 3148. There was no general rule upon this subject, and no special rule was taken. If plaintiff desired an answer to be filed within a certain time, it was his duty to have taken a speeial rule upon defendants to that effect.. A default can only be taken against one who has failed to comply with some rule or order of the court. Wright v. Howell, 24 Iowa, 150. The default in this case was improperly entered, and the motion to set it aside should, therefore, have been sustained.
Reversed.
