Hinman v. Weiser

9 Iowa 561

• Court: Supreme Court of Iowa
• Decided: November 3, 1859
• Status: Published

Opinion

Woodward, J.

We think the court erred in the affirmance of the judgment. The docket fee was paid two days before the motion to affirm was made. The omission to pay it at the precise time required, does not absolutely affirm the judgment, but this requires a motion from the other side, for without such, the omission maybe passed by and have no effect. And it is a general rule in reference to defaults of this nature, that if the default or omission is supplied before the opposite party sustained detriment, or makes an objection of the default, it is cured.

Rules of this nature are intended to promote vigilance. In the present instance, it is to insure promptness in the prosecution of the appeal, and this being effected, the motion cannot go back and nullify the defendant’s action, and prevail the same as if the defendant had not performed the required act. The rule is not absolute so as to execute itself, but the plaintiff is to claim its execution, and the defendant having performed the required act first, it is too late to claim its application. See the State of Iowa v. Glass, ante.

We regard this view as sufficient without examining the other reasons urged by the appellant.

The judgment is reversed, and a procedendo awarded.