Allen v. Toucheo

188 Iowa 1175

• Court: Supreme Court of Iowa
• Decided: May 4, 1920
• Status: Published

Opinion

Salinger, J.

I. The main point made for the appellant is that the court erred in the exercise of and abused its discretion in refusing to set the default judgment aside. On whether there was due service there is a flat conflict. The return of the sheriff asserts that substituted service was made at the usual place of residence of this appellant. The officer who made the service supports the truth of the return by his testimony. On the other hand, there is testimony that the service was made at a place other than said usual residence. We bold that the court did not abuse its discretion, and that we cannot interfere with its having believed the return and the testimony supporting the same, and, therefore, cannot disturb its resulting action in refusing to set the default judgment aside. See Pyle v. Stone, 185 Iowa 785; McWilliams v. Robertson, 180 Iowa 281.

II. There is a complaint of the reception of certain testimony. It may not be denied that it presents a serious question, if the record leaves us at liberty to pass upon this complaint. We are constrained to hold that we cannot consider it. Much of it was received without any objection. In several instances, no ruling was had on objections made, and no ruling was demanded. In the instances where objections were overruled, no exception was taken. We cannot entertain the assignment.

Of necessity, this conclusion makes it unnecessary to consider various practice points urged by the appellee.

We are, however, of opinion that the motion of appel-lee, demanding an assessment of a penalty under Section 4141 of the Code, on the ground that the appeal was friv-, olous and taken for delay, is without merit. — Affirmed.

Wbavbe, C. J., Evans and Preston, JJ., concur.