Wright & Lawther Oil & Lead Manuf'g Co. v. Kleigel

70 Iowa 578 | Iowa | 1887

RotheooK, J\

T. One ground of the motion to set aside the default was founded upon the alleged insufficiency of the 1. judgment settíugasíde. original notice served upon the defendants. The notice claimed “two hundred and fifty dollars, with interest, * *■ * on a certain flaxseed contract.” The petition, as will be seen from the above statement of facts, is in the nature of an action of detinue. The question presented by the appeal is not whether such a notice would be sufficient to confer jurisdiction upon the court to render a judgment by default upon the cause of action set out in the petition, and we need not determine that question. The variance between the notice and the petition was presented to the court as a reason for setting aside the default. We think the ruling of the court was correct. The motion to set aside the default was promptly made. The defendants were not sued in the county of their residence. The original notice was, to say the least, informal, and the defendants by affidavit accompanying their motion set forth a good defense to the action. Considering all these circumstances, we think the court did not err in allowing a trial upon the merits of plaintiff’s claim.

II. Appellant contends that the order for the change of venue was erroneous because the contract was to be per-2 VENUE: pertormediu0 county. formed by delivering the crop of flaxseed to the 1 P^11™ Kossuth county, and that the action was therefore upon a written contract to be performed in that county, and that, under section 2581 of the Code, the action was properly brought in that county. The ready answer to this position is that these defendants were not parties to the written contract. They did not sign it, and it is not even alleged in the petition that they made any oral agreement with the plaintiff. If they made an oral agreement that they would carry out and perform the written contract, an action could not be maintained thereon in Kossuth county against their objection. McDaniels v. Wheeler, 64 Iowa, 678.

AFFIRMED.