Walker v. Hutchinson

50 Iowa 364 | Iowa | 1879

Eothrock, J.

i. practice : default.1 The plaintiff complains because his motion for a default was overruled, and the defendants were permitted to answer. It will be observed that no judgment by default had been entered. The cause stood upon plaintiff’s motion for a default because the defendants had not answered within the sixty days. The question for our determination is, did the court abuse its discretion in holding that the resistance to the motion was sufficient to entitle the defendants to answer ?

It has often been determined that setting aside a judgment obtained by default is a matter within the legal discretion of the court, and that this discretion should not be interfered with upon appeal excepting in eases where it clearly appears that it has been improperly exercised. This being the rule where a default has been allowed or entered, it should apply in all its force to a ruling upon a motion for a default.

An examination of the whole record in this case satisfies us that there is no good ground for a reversal of the ruling of the court below. It is true the affidavit in excuse of the failure to plead is controverted in some of its fact statements by the counter-affidavits, but we are not called upon to settle such conflict. We must accept the finding of the court below as correct upon the facts, the same as in any other case of conflict of evidence. There are many considerations in this record leading to the conclusion that the default was properly refused. Among these are the following: The character of the action was such as to lead to the conclusion that the defendants really desired to contest the claim made in the petition. The order continuing the cause was made at plaintiff’s instance, and at his costs, thus showing that up to the time the rule to answer was entered the defendants had not been negligent in defending the action. It does not appear that any delay was occasioned by permitting the defendants to answer, because if they had answered within the rules the court could not have made the order of reference before the term at which it was made.

It is urged that the motion of the plaintiff should have been sustained because there was no affidavit of merits filed by defendants. Section 2871 of the Code, upon which plaintiff relies, provides that a default shall not be set aside unless an affidavit of merits be filed, and a reasonable excuse shown for having made the default. But this was not an application to set aside a default. It was an application asking that a default be entered against the defendants, which they resisted by an affidavit in excuse, and by an answer ■exhibited with the affidavit.

We are the more ready to affirm the ruling of the ccjurt below because the parties are thus enabled to try the cause upon its merits — a right which all courts should endeavor to preserve, when it can be done without prejudice to any one, and without the violation of well-established rules.

Aeeirmed.