Russell v. Nelson, 32 Iowa 215

32 Iowa 215 | Iowa | 1871

Cole, J.

1.nbtvtkiai.: mlstfee of: law. I. As tbe evidence upon which tbe district court made tbe decree in tbe case is not contained in tbe transcript, we cannot sustain either tbe first or second ground of tbe motion — that tbe decree was n0£ sustained by sufficient evidence, and was contrary to law.

II. Tbe party making tbe motion for a new trial admits that be was served with notice more than three months before tbe default and judgment were entered, and makes no excuse for bis failure to appear and defend, except that be knew tbe plaintiff bad no title and did not think be could get a decree without taking depositions. A clear mistake of law, from which tbe least degree of diligence would have relieved bim. Tbe negligence and total absence of any reasonable or even plausible excuse for it is too palpable to justify us in granting a new trial against tbe judgment of tbe district court which tried tbe cause, and perhaps beard tbe evidence refuting tbe improbable grounds under which tbe defendant now claims to be tbe sole owner.

2__statute construed, III. Tbe counsel for appellant makes several points in bis argument, not made in tbe motion itself, and are not, therefore, fully disposed of in the foregoing paragraphs, which decide the questions directly made in the motion, as shown by the record.

It is first urged that in an .action to quiet title the defendant has two years in which to file his motion for a new trial. Rev., § 3584. This section applies to actions for the recovery of real property, and not to equitable actions like this, to quiet title. Besides, a new trial by that section is not granted, of course, but in the discretion of the court, it may be, at any time within two years. Tbe discretion in such cases, it is true, is to be liberally exercised. White v. Poorman, 24 Iowa, 108.

Again, it is urged that the plaintiff must recover upon the strength of his own title. Rev., § 3591. This is true, and in the absence of the evidence we must presume that he did. But this section, too, relates to actions for the recovery of real property. The same answer— absence of the evidence — will dispose of the third point in the appellant’s argument, to wit: that where a decree is against law it will be set aside — nor^constat it is against the law. So, also, of the point that Russell purchased with notice of Nelson’s equities. And finally, it is urged, that the plaintiff’s petition, even if taken as true, is not sufficient to sustain the decree. We need not set it' out at length; we have examined it with care, and it seems to us that by the most strict construction of equity pleadings the petition is sufficient; and, surely, under the doctrine of Harrison v. Kramer, 3 Iowa, 543 (i. e.) 557, that allegations indefinite and uncertain may have the certainty requisite for a proper decree afforded by proofs, there can be no question in this case.

No question is made, either in the motion for the new trial nor in the argument by appellant’s counsel here, as to whether the defendant, having been served personally out of the State, instead of by publication, is entitled to two years in which to appear and demand a retrial upon giving bond, etc., as provided in Revision, section 3160. Tbe question not being made, nor properly in tbe record, of course we do not pass upon it.

Affirmed