Callanan v. Ætna National Bank of Hartford

50 N.W. 69, 84 Iowa 8

• Court: Supreme Court of Iowa
• Decided: October 27, 1891
• Status: Published

Opinion

Granger, J.

The appellees cite, in support of the action of the district court in setting aside the default and judgment, Code, section 3154. The section provides that the district court may vacate a judgment after the-term in which it is entered, for various reasons, and,, among them, “seventh, for unavoidable casualty or misfortune preventing tbe party from prosecuting or defending.” It may be said tbat, to our minds, tbe showing to set aside tbe default is not strong, but tbe rule has been long observed, and is well established, tbat such action by tbe district court is largely discretionary, and tbat this court will not interfere except in clear cases of abuse. In Rogers v. Cummings, 11 Iowa, 459, it is said tbat, to justify this court in disturbing such a ruling, tbe abuse of discretion must be “ clear and manifest.” See, also, Marsh v. Colony, 36 Iowa, 603; Westphal v. Clark, 46 Iowa, 262; Willet v. Millman, 61 Iowa, 123, and Gilbert v. Wilcox, 33 Iowa, 594. No objection was made in tbe district court to tbe proceedings being by motion instead of petition, and, under tbe ruling in Town of Storm Lake v. Iowa Falls & S. C. Ry. Co., 62 Iowa, 218, we must treat it as regular. Tbe affidavits of tbe respective attorneys constitute tbe evidence on tbe trial of tbe motion, and from such evidence and tbe record the district court could have found that tbe default and judgment were entered because of tbe sickness of tbe defendants’ attorney, for it unmistakably appears tbat at tbe time be was so sick in bed as to be unable to give tbe matter any attention, either in court or to counsel bis clients; tbat tbe defendants in interest were residents of Connecticut, and knew nothing of tbe default or judgment till after tbe last term of tbe court before tbe motion to set aside tbe default was made; and that, as a result, tbe defendants were prevented from defending by an unavoidable casualty or misfortune. These facts are quite apparent from tbe record. Tbe doubtful feature of tbe showing is tbe long delay after tbe judgment before presenting tbe motion, tbe evidence being far from specific as to tbe reasons for a want of knowledge on tbe part of tbe defendants as to tbe condition of tbe record for so long a time. The district court must have found tbat there were no laches, or, if laches, tbat they were without prejudice; and such a view has support in the record, when all considered. We think there is no abuse of discretion to warrant our disturbing the order of the district court, and it is affirmed.