87 Iowa 62 | Iowa | 1893
March 4, 1890, the plaintiff filed his petition in the district court of Polk county, making Ira P. Wetmore, Abbey Scribner, and others defendants, and asking judgment against said Wetmore, as the maker of a promissory note, and a decree of foreclosure of a mortgage securing it against all the. defendants. The mortgaged property was described as ‘ ‘the south sixteen feet of the north twenty feet and four inches of lot thirty-six (36) in York’s addition to Des Moines, Iowa.” Said petition also averred that the other defendants were purchasers of said property from the defendant Wetmore, and that they had
August 20, 1890, and after the close of the April term of 1890 of said court, Abbey Scribner filed a motion to set aside the decree for the following reasons:
“First, because the same attempts to describe property other and different from that described in the petition or notice served upon her in this case; second, because the same is against property upon which defendant Abbey Scribner has a first and prior lien, of which relief she has never had notice; third, because the said decree was entered without any power or jurisdiction in the court to render the same; fourth, because the same was irregularly and erroneously entered, especially as to the defendant Abbey Scribner, for the reason set forth and appearing in the affidavit of J. M. St. John, which is attached to this petition, and made a part hereof.”
There was filed with the motion, and in support of it, an affidavit of J. M. St. John, verified September 29, 1890, showing that the copy of the petition filed in the case for the use of defendants did not name Abbey Scribner as a defendant; that the description of the mortgaged property was the same as in the plaintiff’s
If we treat the application as a motion, the court had no power to amend the decree in the manner it did. If the applicant had in all respects complied with the law, the court could only have set aside the default, and heard the case on its merits, on the filing of an answer. It proceeded to take testimony and amend the decree in the absence of any pleading filed by the defendant, and hence, in the absence of any issue made. Furthermore, the defendant, being in default, was not entitled to introduce evidence in any event while such default stood. Code, section 2873; Kinne’s Pleading, Practice & Forms, section 633, and cases cited. It may be contended that, though the default was not in terms set aside, yet the sustaining the motion to set aside the decree, in fact, set aside the default. If that should be true, it would not aid the appellee, as the motion not being filed in time provided by law, it should not have been entertained as a motion.
In proceedings under the sections just referred to, it is provided that the pleadings shall be governed by the principles and issues made up in the same form, and all the proceedings conducted in the same way, as. near as can be, as in an original action by ordinary proceedings. Code, section 3158. It is further provided that the judgment shall not be vacated until it is adjudged that there is a valid defense to the action in which it was rendered. Code, section 3159. Section 3160-seems to contemplate that the court shall first try and decide upon the sufficiency of the grounds to vacate or modify the judgment or order, before it enters upon the consideration of the validity of the defense presented.
But the appellant insists that under his prayer for general equitable relief he hád a right to any relief consistent with the pleadings and sustained by the proofs. That may be conceded; but a decree of foreclosure against land described as “the south sixteen feet of the north twenty feet and four inches of lot thirty-six (36) in York’s addition to Des Moines, Iowa, being York’s subdivision of lot five of official plat of N. E. i- of sec. 9, twp. 78, range 24 west, 5 P. M.” would hardly be consistent' with the allegations of a petition that the mortgaged property was “the south sixteen feet of the north twenty feet and four inches of York’s addition to Des Moines, Iowa.”
The appellee had a right to rely upon the description in the plaintiff’s petition and mortgage, in the absence of knowledge to the contrary, as describing
There would have been no abuse of discretion if the court below had set aside the decree,-and permitted the appellee to file pleadings presenting her defense. The fact that the court also, without objection from the appellant, proceeded to hear the case on its merits, and afford the relief to which the appellee showed herself entitled, will not warrant us in going through the idle ceremony of reversing this case, to the end that proper issues be found and a hearing had thereon, when no objection was made below to the time or manner of the proceedings, or to the informalities connected therewith; especially when it is not claimed that on a formal hearing, had in precise compliance with the statute, any other or further evidence could be adduced, and when as it appears to us the same result must be reached, — a result which we deem just to all the parties. While the forms of law should be observed, yet a cause should not be reversed when no objection has been made to the time or manner of the proceedings had in the court below, and the same result has been reached as would have been'had the strict letter of the law been complied with.
The action of the district court is affirmed.