District Township v. White

42 Iowa 608

• Court: Supreme Court of Iowa
• Decided: April 4, 1876
• Status: Published

Opinion

Day, J.

1. PRACTICE: time of filing pleading I. Tlie defendant must demur, answer, or do both, as to the original petition, before noon of the second day of the term. To all subsequent pleadings, including amendments thereto and substitutes therefor, each party .must demur, answer or reply before noon of the day succeeding that on which the pleading is filed. The court, with due regard to making up the issues at the earliest day possible, may extend the time of filing any pleading. Code, Secs. 2635, 2636, and 2638.

The amended petition in this case was filed on the 23d day of January, and it was incumbent upon defendants to plead thereto before noon of the next day. The court, however, extended the time, not of pleading generally, but of filing an answer, and allowed defendants to answer within thirty days. In doing this, the com’t, under Sec. 2638, above quoted, was required to have due regard to making up the issues at the earliest day possible. The court, probably, would not have felt justified in granting so long a time for demurring to the petition, and the record does not show that any extension of time for that purpose was granted.

By asking and obtaining this time to answer, the defendants did not waive the right to file a demurrer; but, if they desired to file such pleading, they should have done so before noon of the 2éth.day of January. They had no right to take along time to answer, and then toiavail themselves of the extended time for the filing of a demurrer, when the extension may have been granted, as, indeed, seems most likely from the whole record, with the express understanding that at that time an answer only should be filed.

As the demurrer was not filed in accoi’dance with the order of the court, there was no error in striking it from the files; and, as the defendants were without any pleading to the petition when their demurrer was stricken from the files, there was no error in entering a default against them- for want of an answer.

2. EQUITY: fraud: new trial. II. The defendants’ motion in. arrest of judgment was, properly overruled. The ground of this motion is that the petition shows plaintiff is not entitled to any relief, because it shows that, more than one year lias elapsed since the judgment sought to be set aside was rendered.

Appellants rely upon the provisions of Sec. 3157 of the Code, which is identical with Sec. 3501 of the Eevision.

• Outside and independently of the provisions of this section, it has been held that a court of equity will grant new trials in actions at law, after the time for applying for relief under this section has elapsed, provided proper reasons are shown for not making such application. Bowen v. The Troy Portable Mill Co., 31 Iowa, 461; Partridge v. Harrow, 27 Id., 97; Haskins v. Hollenbeck, 14 Iowa, 314; Young v. Tucker, 39 Iowa, 596. The petition in this case alleges that the frauds were not discovered until long after the expiration of the year following the judgment. It is clear that this action is not based upon the provisions of section 3157 of the Code, but upon the general jurisdiction which equity exercises to grant relief in cases of fraud. The action is not, under the circumstances alleged, barred in. one year from the date of the judgment.

3. PRACTICE: default: affirmed III. There was no error in overruling the motion to set aside the default. Default may be set aside on such terms as the court may deem just, but not unless an affida- ... . , ... ' ’ , . _ _ vit ox merits be filed. Code, section 2871. The facts set forth in the affidavit of defendant, as constituting a meritorious defense, amount to no defense whatever. The first thing stated is that the facts stated in the petition do not entitle plaintiff.to relief. This presents in another form the bar of the statute, section 3157.

Appellants in argument also urge that the action was not commenced within five years from the rendition of judgment, But this action is for relief on the ground of fraud, and the action did not accrue till the fraud was discovered. Code, section 2530. The plaintiff alleges that the fraud was not discovered till more than a year after the judgment was rendered. The action was commenced by placing the original notice in the hands of the sheriff, five years and nineteen days after the judgment was rendered, which is shown upon the face of the petition to be not more than four years from the discovery of the fraud, and from all the averments of the petition it was probably much less. The affidavit further states tbe fraud alleged is not known to defendants, and they purchased their interest in tbe judgment without knowledge of any defense, and after tbe time for appeal and vacating tbe same bad passed. This constitutes no defense. The assignee of a judgments succeeds only to the rights of the assignor. Burtis v. Cook & Sargent, 16 Iowa, 194; Isett & Brewster v. Lucas et al., 17 Iowa, 503.

4.___. evidence. IV. Lastly, there was no error in overruling defendants’ motion to dismiss the petition, or to prevent plaintiff from introducing evidence, because plaintiff had failed £0 ^a]je -written evidence. Defendants were in default, and could appear only for the purpose 'of cross-examining witnesses. Code, 2873.

The several orders of the court below are

Affirmed.