Roberts v. Malloy

69 N.W. 674, 100 Iowa 372

• Court: Supreme Court of Iowa
• Decided: December 12, 1896
• Status: Published

Opinion

Ejunb, J.

The abstract sets forth an original notice, which contains the following as a part of the title: “State of Iowa, Lee County — ss.: In the Superior Court of Keokuk, Lee County, Iowa, September Term, 1894.” The body of the notice is to the effect that there was a petition on file “in the clerk’s office of the superior court aforesaid at Keokuk, * * * * and unless you appear thereto and defend on or before noon of the next regular September term of said court, to be begun and holden at Keokuk * * * * on the third day of September, -A. D. 189-,” etc. Except as to the time of appearance, the notice is in all respects full and complete. On the regular default day the plaintiff demanded a default, whereupon defendant’s attorneys appeared ámicus eurice, and filed objections to a default. The court took the matter under advisement, and thereafter refused a default. In view of the condition of this record, we think no appeal lies from the order refusing to enter a default. The record fails to show the ground of the court’s refusal. It does not show that an answer was not on file. For aught that appears, the court may have required the attorneys who appeared as amicus curiae to file an answer. He merely stood upon the court’s refusal to enter a default, which action of the court may have caused a continuance of the case, but it does not appear that any substantial right was determined by the court’s ruling. The order, not appearing to be one affecting a substantial right, or one which, in effect, determined the action, or one involving the merits of the case, cannot be appealed frond. Code, section 3164; 2 Am. & Eng. Enc. Pl. & Prac. p. 105. The defect in the record being jurisdictional, we cannot consider the question of the sufficiency of the notice. — Dismissed.