179 Iowa 1250 | Iowa | 1917
To this petition, the defendants, on May 5, 1914, filed an answer, in substance: Admit that they sold the land in question to the plaintiff for $17,150, and say that the real contract was as written. Further, that plaintiff has failed to perform his contract, as required by its terms; that, on the 16th day of March, they served upon the plaintiff written statutory notice of intention to forfeit; deny that they ever misrepresented any fact to the plaintiff; deny that they told him that there was not a mortgage already upon the land; allege that he knew of and agreed to assume the mortgage of $4,000; say that, at the time they sold the land to plaintiff, there was a mortgage of $4,000 on it; that this fact was brought to the knowledge of the plaintiff; that this mortgage plaintiff agreed to assume, and agreed to give defendant a note and mortgage for the balance of the purchase price, after deducting the $650 cash payment, $2,500 to be paid on March 1, 1914, and the $4,000 mortgage assumed; deny each and every allegation of plaintiff’s petition.
Defendants further, by way of cross petition, alleged: That plaintiff failed to make the payment of $2,500 on
On the 15th day of December, 1914, the cause came on for trial upon the issues tendered. The defendants appeared in court by their attorneys, Nagle & Nagle, and the plaintiff, though called upon to appear, did not appear either in person or by attorney. The cause proceeded to trial, and was finally submitted to the court. The court found that the plaintiff was not entitled to a reformation of the contract as claimed by him; that the written contract fully expressed the agreement between the parties. It further found that the plaintiff had made default in the payment and had breached his contract; that, upon the 19th day of March, 1914, the defendant served upon him written notice of intention to forfeit within 30 days; that plaintiff failed and neglected to make the payment of the $2,500 within 30 days; that said forfeit became complete; that the plaintiff is not now entitled to have any claim or interest in the real estate described in his petition.
It was therefore, decreed that the contract be, and the same was, canceled, and all interest in the plaintiff, under the contract, was barred and cut off. It was decreed further that the defendants were the owners- of the real estate, clear of any lien or claim on the part of the plaintiff in or to said land, or to the purchase money paid at the time the contract was made.
On the 16th day of December, 1914, plaintiff appeared by his attorney and filed a motion to vacate and set aside the judgment and order entered by the court, and based his right to have the judgment and order set aside upon an
The excuse for not being present at the time of the trial, the excuse for not knowing that their case was assigned for trial, the excuse for not knowing that the trial notice had been filed by the defendant in the cause, is substantially as follows: The plaintiff’s attorneys reside in Mason City. They were informed and believed that the clerk would notify them of the assignment of said cause for trial; that he would send them a calendar. They allege that they relied upon the clerk to do this; that he did not do it until after the judgment had been entered, and not until after he had been called up over the telephone by plaintiff’s attorneys. They say that their absence at the time of the trial was not due to any default on their part, but to the misunderstanding and lack of knowledge that the cause had been assigned for trial. They say they have a meritorious cause of action, and will be greatly injured if the motion is not sustained.
“In any case once continued, where an answer is on file, either party desiring to bring such cause on for trial at any term shall, at least 10 days before such term, file with the clerk a notice of trial, and no such cause shall stand for trial unless a trial notice be so filed, except by consent of parties.”
It is no part of the clerk’s duty to m-form parties to a suit of the condition of the record at any particular time, or of the action about to be taken,- or taken, by the court, and parties have no right to rely upon his doing so. There is not even a showing of a general custom on the part of the clerk to notify persons outside the county of the condition of the record in causes pending in which they are interested. There is no showing even that it was the custom of the clerk to send calendars ta the attorneys, showing- the state of the record. There is no showing that it was the custom of the clerk, or that they had a right to believe that the clerk would give them any notice as to when the cause was- -set for trial. The duty of the clerk is to keep the records. It is the duty of the parties to a suit to see from these records kept by the clerk what these records show. A party -and his attorney must take notice of the time and place of holding court, and of the position of the cause on the calendar, and he present when it is called for trial. It is true that Section 3661 of the Code of 1897 provides that the clerk shall furnish the
“While one may not be indulged in placing full reliance upon the bar docket, to the exclusion of ascertaining what the official record shows as to the status of causes in which he may be interested, yet where the printed docket is misleading to the attorney, or fails to give to him the ixxforxnatioxx which he reasonably may expect to be there, and when, upon discovering his mistake, immediate action is taken to protect the interests of his client, we would be reluctant to hold that the trial court, with its knowledge of the situation and of the methods of practice in its court, had abused discretion in setting aside a default and judgment obtained under such conditions.”
In this case, the action of the court in setting aside the default was justified, on the ground that the bar docket was the xneans of information upon which attorneys have coxne to rely as showing pending causes, and that, upon an examination of the copies of the calendar furnished by the clerk, he was misled into thinking that the case was not for tidal, because it did not appear on- the list of cases noted for trial. We do not think this statute, requiring the clei*k to furnish the court and bar with printed copies of the calendar, requires the clerk to do more than furnish them for those who request them, or to place them in a
We think the court was justified in finding that the’ plaintiff and his counsel were not diligent; that they were, in fact, negligent; and that the conditions that now confront them, and of which they complain, are conditions brought about by their own culpable negligence. We think the court did not abuse its discretion. In fact, we do not think the court, under the record, could well have done