McGrew v. Downs

Supreme Court of Iowa

McGrew v. Downs

25 N.W. 880, 67 Iowa 687

CourtSupreme Court of Iowa

DecidedDecember 15, 1885

StatusPublished

Cited by2 cases

This text of 25 N.W. 880 (McGrew v. Downs) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McGrew v. Downs, 25 N.W. 880, 67 Iowa 687 (iowa 1885).

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Opinion

Reed, J.

[688]*6881. practice: pearano^ot poweiMrf*' court to fix by rule. [687]*687In citing the defendant to appear and defend on the first day of the term., plaintiff proceeded under the [688]*688following rule, which had been adopted by the judges of the district and circuit courts of the Thirteenth judicial district: “Rule 1. In all ,. . . . . .... cases the plaintiff may inform the defendant m the original notice that unless he appear thereto and defend before noon of the first day of the term at which he is required to appear, default will he entered against him; and when the defendant is served with such notice he shall demur or answer, or do both, as to the original petition before noon of the first day of the next term.”

I. It is contended that this rule is not authorized by statute, and hence that, as the statute (Code, § 2599) provides that the defendant shall be cited by the original notice to appear and defend before noon of the second day of the term, he cannot he adjudged to be in default before the second day. Section 180 of the Code provides that “the judges of the district and circuit courts in any district may provide by general rule (1) that the time of filing pleadings or motions shall be other than provided in this Code; (2) that issues in all or a part of the counties in such district shall he made up- in vacation; * * * (1) adopting such other rules as they may deem expedient, not inconsistent with this Code.” It is very clear, we think, that the power to adopt the rule in question is conferred by this section.

2. judgment on what1*' aside: am-merits. II. “ Default may be set aside on such terms as the court may deem just, among which must be that of pleading issuably and forthwith, but not unless an affidavit of merits be filed and a reasonable excuse shown for having made such default.” Code, S 2871. Ihis provision contemplates that the party shall set forth in his affidavit a statement of the facts constituting his defense. This was not done by the defendant in this case. He stated in general terms, however, that he had a good defense to plaintiff’s claim. But this is no more than the expression by him of the opinion that he had a good [689]*689defense. This court has frequently held that this is not a compliance with the requirement of the statute. Jœger v. Evans, 46 Iowa, 188; King v. Stewart, 48 Id., 334.

The district court was justified on this ground in overruling the motion.

Affirmed.

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Reed, J.

[688]*6881. practice: pearano^ot poweiMrf*' court to fix by rule. [687]*687In citing the defendant to appear and defend on the first day of the term., plaintiff proceeded under the [688]*688following rule, which had been adopted by the judges of the district and circuit courts of the Thirteenth judicial district: “Rule 1. In all ,. . . . . .... cases the plaintiff may inform the defendant m the original notice that unless he appear thereto and defend before noon of the first day of the term at which he is required to appear, default will he entered against him; and when the defendant is served with such notice he shall demur or answer, or do both, as to the original petition before noon of the first day of the next term.”

I. It is contended that this rule is not authorized by statute, and hence that, as the statute (Code, § 2599) provides that the defendant shall be cited by the original notice to appear and defend before noon of the second day of the term, he cannot he adjudged to be in default before the second day. Section 180 of the Code provides that “the judges of the district and circuit courts in any district may provide by general rule (1) that the time of filing pleadings or motions shall be other than provided in this Code; (2) that issues in all or a part of the counties in such district shall he made up- in vacation; * * * (1) adopting such other rules as they may deem expedient, not inconsistent with this Code.” It is very clear, we think, that the power to adopt the rule in question is conferred by this section.

2. judgment on what1*' aside: am-merits. II. “ Default may be set aside on such terms as the court may deem just, among which must be that of pleading issuably and forthwith, but not unless an affidavit of merits be filed and a reasonable excuse shown for having made such default.” Code, S 2871. Ihis provision contemplates that the party shall set forth in his affidavit a statement of the facts constituting his defense. This was not done by the defendant in this case. He stated in general terms, however, that he had a good defense to plaintiff’s claim. But this is no more than the expression by him of the opinion that he had a good [689]*689defense. This court has frequently held that this is not a compliance with the requirement of the statute. Jœger v. Evans, 46 Iowa, 188; King v. Stewart, 48 Id., 334.

The district court was justified on this ground in overruling the motion.

Affirmed.

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25 N.W. 880, 67 Iowa 687, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgrew-v-downs-iowa-1885.

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