Davis v. Brady

3 Bradf. 39, 1 Morris 101

• Court: Supreme Court of Iowa
• Decided: July 15, 1841
• Status: Published

Opinion

BY THE COURT.

The record in this case exhibits a material error. Before any default was entered, a plea appears to have" been filed, notwithstanding which, judgment was rendered by default. The counsel for the defendants in error contends that, inasmuch as the plea was not filed until the evening of the second day of the term, and as the rule’ of court requires, in effect, that it should have been filed by the morning of that day, the defendant below was actually in default, and that the plea was too late. Admit-ing that the rules adopted in 1839 are still in full force in Muscatine county, and that we can judicially take cognizance of that fact, still those rules only declare that where the deft, does not plead by the second day, the plaintiff may take a judgment by default at the next regular call of the roll of attorneys. If he do not avail himself of this privilege, the defendant may still plead. A plea is in time previous to the actual entering of a default, unless there is some express rule of court to the contrary. The transcript does not show such a rule here.

The judgment of the court below will therefore be set aside, and the case remanded to the District Court of Muscatine Gounty.