Cory v. King & Co.

49 Iowa 365

• Court: Supreme Court of Iowa
• Decided: October 24, 1878
• Status: Published

Opinion

Seevers, J.

1. practice : default: judgment. The defendants were required to appear before the justice at nine o’clock a. m. The docket of the justice, and also his return to the writ of error, as follows: “Now, to-wit: July 19, 1875, at nine o’clock a. si., court is in suit is called. Defendants failing to appear are in default.”

If this statement is true the default was not entered too soon. Affidavits were introduced impeaching the return of the justice. We think this cannot be done. There is no statute sanctioning such a course. As to the time when a default was entered or a cause tried the return of the justice must be conclusive. Without doubt it is true but few timepieces are in exact accord. The law casts upon the justice the duty of determining when the proper time arrives to render a default, and his judgment must be conclusive as to this question of fact. If, by reason of a mistake of the justice in this .respect, the defendant is deprived of the opportunity to put in his defense, he can do so on appeal (Code, § 3596), and if he is deprived of the privilege of setting up a counter-claim he can bring an action thereon, so that he is not deprived of a sufficient remedy.

Much wrong and expense would be entailed on parties if defaults could be set aside because rendered a few minutes too soon, in the opinion of some one other than the justice. And especially would this be true if the time could be shown by affidavit and a comparison of watches. There can be but one correct time at a given place, and when the justice states in his docket and return that such time had arrived, the conclusive presumption is he referred to the true time.

Aeetrmed.