Brunson v. Nichols, Shepard & Co.

34 N.W. 289, 72 Iowa 763

• Court: Supreme Court of Iowa
• Decided: October 7, 1887
• Status: Published

Opinion

Seevers, J.

-I. Two grounds of the motion to set aside the default are the same as in Gross v. Nichols, Shepard & Co., ante, p. 239, and the facts upon which the motion is based are also substantially the same. Therefore ifc must follow that the court did not err in overruling the motion on the first two grounds stated therein.

II. A third ground is that the judgment or decree is in the alternative, and therefore null and void. It does not follow because the judgment is of the character stated that it is void. At most it is probably erroneous only, or, if void, it cannot be enforced. But, be this as it may, as there was service of notice on the defendant, and the court had jurisdiction of it and the subject-matter, the default cannot be set aside, for the reason that the defendant did not file an answer and affidavit of merits. (Code, § 2871.)

AFFIRMED.