Stivers v. Thompson

Supreme Court of Iowa

Stivers v. Thompson

15 Iowa 1, 1863 Iowa Sup. LEXIS 49

CourtSupreme Court of Iowa

DecidedJune 5, 1863

StatusPublished

Cited by1 cases

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Bluebook

Stivers v. Thompson, 15 Iowa 1, 1863 Iowa Sup. LEXIS 49 (iowa 1863).

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Opinion

Wright, J.

Judgment in favor of plaintiff, before a justice of tbe peace, wbicb was set aside on defendant’s motion; and to reverse this order plaintiff prosecuted bis writ of error to tbe District Court.

Tbe errors complained of in tbe affidavit for tbe writ are:

First. That tbe justice erred in setting aside tbe judgment by default. The law is, that tbe justice may set aside such a judgment within six days after being rendered, if a satisfactory excuse for tbe default is shown. Yery much is necessarily left to tbe discretion of tbe justice, in judging of such satisfactory excuse. Unless it has been clearly abused, there should be no interference with its exercise. ■In this case, tbe affidavit shows that tbe defendant was at tbe office of tbe justice, by bis attorney, before the expiration of tbe hour contemplated by § 8867 of tbe Revision; that the justice was not there; that be appeared again within tbe hour, according to tbe standard- of time in tbe town [3]*3•■where the justice resided, but five minutes too late acpprd■ing to the magistrate’s time;, and there isa showing pf merits. . This showing is not contradicted by the magis.trate’s return nor otherwise. ■ There was most clearly no .abuse of discretion in setting aside.the default- and judg.ment.. • ■

Second.. As .to the second errcsr, .it is sufficient to say, that the law does not contemplate a notice to the opposite party of the motion to set aside a default. After the order is made, setting it aside, a new'day is'fixed for. .the trial and notice of that is to be given. (§ 8887, Rev. of 1860.)

Third. It is said, in the place, no was' made by the justice' as to additional costs. ' The order wás that the default be set aside at the costs of defendant/' The statute is that such order shall be made in relation to the additional costs'as'thé justice shall deem equitable.- (§ 3889.) What more equitable rule appellant could aslc than the one made by the -justice,' we are at'' a loss to conceive.

Affirmed.

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Wright, J.

Judgment in favor of plaintiff, before a justice of tbe peace, wbicb was set aside on defendant’s motion; and to reverse this order plaintiff prosecuted bis writ of error to tbe District Court.

Tbe errors complained of in tbe affidavit for tbe writ are:

First. That tbe justice erred in setting aside tbe judgment by default. The law is, that tbe justice may set aside such a judgment within six days after being rendered, if a satisfactory excuse for tbe default is shown. Yery much is necessarily left to tbe discretion of tbe justice, in judging of such satisfactory excuse. Unless it has been clearly abused, there should be no interference with its exercise. ■In this case, tbe affidavit shows that tbe defendant was at tbe office of tbe justice, by bis attorney, before the expiration of tbe hour contemplated by § 8867 of tbe Revision; that the justice was not there; that be appeared again within tbe hour, according to tbe standard- of time in tbe town [3]*3•■where the justice resided, but five minutes too late acpprd■ing to the magistrate’s time;, and there isa showing pf merits. . This showing is not contradicted by the magis.trate’s return nor otherwise. ■ There was most clearly no .abuse of discretion in setting aside.the default- and judg.ment.. • ■

Second.. As .to the second errcsr, .it is sufficient to say, that the law does not contemplate a notice to the opposite party of the motion to set aside a default. After the order is made, setting it aside, a new'day is'fixed for. .the trial and notice of that is to be given. (§ 8887, Rev. of 1860.)

Third. It is said, in the place, no was' made by the justice' as to additional costs. ' The order wás that the default be set aside at the costs of defendant/' The statute is that such order shall be made in relation to the additional costs'as'thé justice shall deem equitable.- (§ 3889.) What more equitable rule appellant could aslc than the one made by the -justice,' we are at'' a loss to conceive.

Affirmed.

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15 Iowa 1, 1863 Iowa Sup. LEXIS 49, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stivers-v-thompson-iowa-1863.

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