Thompson v. Savage

43 Iowa 398 | Iowa | 1876

Beck, J.

I. The appellees filed an amended abstract, to which appellant makes certain objections, which need not be set out. The questions thus raised we will not pass upon, as we are of the opinion that, upon appellant’s abstract, which will be alone considered, the decree of the Circuit Court must be affirmed.

II. The cross bill demanded an answer, for it alleges facts, other than those which can be regarded , as putting in issue the allegation of plaintiff’s petition, which entitled defendants to the affirmative relief prayed for in their petition.

1. PBACTrcE • FnTavor’of011 ruling. III. The motion for the default is upon the ground that plaintiff failed to answer the cross bill within the time allowed k,y the court at a j^rior term. The motion was sustained, and we must presume, in support of the court’s action, and in the absence of a- showing to the contrary, that sufficient ground for the default was made to appear to the court below. • .

If the time for pleading had been extended, we must presume it had expired. If it had not been extended, as plaintiff insists, then he was in default for want of an answer, under Code, § 2636, which requires an answer of this kind to be filed at noon of the day following the filing -of the pleading to-which it responds, if filed in term.

IY. The motion to set aside the default was properly overruled, for the reason that no “affidavit of merit was filed and a reasonable excuse shown for having made such default,” as required by Code, § 2871.

Y. An affidavit appears in the abstract, which was probably suggested by this provision of the Code, but it was filed five days after the court overruled the motion; It is hardly necessary to remark that it cannot be regarded as a compliance with the statute, which contemplates that the showing shall be made to the court prior to its decision, to the end that the question of the rights of the parties may be determined by the court. The affidavit required under this provision cannot be submitted after the court’s decision.

Affirmed.