11 Iowa 216 | Iowa | 1860
The first position assumed by appellants is that the court erred in rendering judgment against all of the defendants, when as to three of them, Elgin, Gwynn and Merrill, there was neither any notice served, nor any appearance or waiver thereof. Service of the original notice as to these three defendants was made by publication, and upon proof thereof the court rendered judgment against them by default.
Such proof does not now appear in the records of this case. The entry made by the clerk that such proof was made, is not conclusive upon this point. But there is only a partial record of this case before us, and the finding of, the court as appears from the record, in the absence of a complete transcript of the case, raises a sufficient presumption before this
It is farther claimed that the court erred in refusing to set aside the default as against Robinson, Langford and Martin. This application was supported by affidavits in excuse for such default.
• It appears from the transcript that the defendants had permission to file their answer in ninety days after the appearance term. Having failed to answer under this rule, or even by the first day of the succeeding term of the court, upon the application of said defendants the time for such answer was extended until the next day of said term. Having again failed to answer, judgment was entered by default.
The forgetfulness and carelosness of counsel are the substance of the excuse for the failure of defendant to plead. We do not regard the showing as sufficient to justify us in interfering with the ruling of the court, and more especially do we feel disposed not to reverse the judgment for this reason, as we do not think that the affidavits show that the defendants had any good defense to the plaintiffs right to recover, and therefore were not prejudiced by the refusal of the court to set aside the default.
. It is further claimed that the court erred in admitting in evidence the bond sued on, under the objections of defendants. The objection interposed by the defendants was that the judge before whom the recognizance was executed haduo power, as judge, to take the acknowledgements of defendants to said bond. Section 3219 of the Code provides that bail is put in by a written undertaking executed by one or more sureties, and acknowledged before the court or magistrate taking the same.
It is further claimed by appellants, that the defendant Elgin was not at any time required to be present and answer to the indictment found against him, and until the recognizance had been forfeited on account of his absence that the sureties were not liable. It is'alleged in the writ that the defendant failed to appear as he was required to do, that each of the defendants were called and made .default, and the recognizance declared forfeited. The appellant does not bring before this court by bill of exception or otherwise what purports to be all the evidence introduced upon the trial. In the absence of this showing as has been repeatedly decided by this court, we are to presume that there was sufficient evidence introduced to justify the finding of the District Court.
Judgment affirmed.
. Wright, J., haying been of counsel, took no part in the determination of this case.
. The followingis the finding of the court as disclosed by the record, after a recital of the filing of proof of publication: “And the court find thatthc said defendants have been duly servod with notice of the pendency of this cause, by publication for four consecutive weeks prior to ton days before the first da3T of the present term of this court.”
