Swift v. Berry

9 Iowa 43

• Court: Supreme Court of Iowa
• Decided: June 13, 1859
• Status: Published

Opinion

WRIGHT, C. J.

The first question is whether, admitting that they were not present, they show a sufficient excuse for their absence. And we are very clear that there was no such abuse of the discretion wisely lodged with the District Court over such matters, as to justify our interference. The showing is not so strong, nor so well sustained, as that made in Harrison v. Kramer, 3 Iowa, 543, which was held insufficient.

But it is urged that the answer of defendants was entirely disregarded, when judgment was rendered, and that the clerk assessed the damages. The record recites that the cause was submitted to the Court; that the issue was found in favor of the plaintiffs; that the action being for a money demand, the clerk was directed to assess the amount, who reported the same to be, &c.; and that thereupon it was considered and adjudged. To this course, there is no valid objection. If the defendants were present, then they submitted. the cause to the court, and did not ask for a jury to assess the damages, nor was one necessary, the action being for a money demand, and the amount of the judgment, a mere matter of computation. If they were not present, then it was equally competent for the court to thus refer the assessment of damages. Code, sections 1828, 1880, 1772. If testimony was received, then the court upon that, determined the issue in favor of the plaintiffs, before making the reference. If no «testimony was offered by defendants, and the cause was determined upon the pleadings, then, as every affirmative allegation of the answer was denied by the replication, the finding was right, and defendants have no cause for complaint.

Judgment affirmed.