White v. Kelley

23 Iowa 275

• Court: Supreme Court of Iowa
• Decided: December 4, 1867
• Status: Published

Opinion

Weight, J=

Practice : trial of default: cases in equity. ■ — The point made on this record is this: That the case is in equity, triable by the first method, that all the evidence must be in writing, and that in this court the case is to be heard on this evidence and none other; that plaintiff is without such evidence, and his petition must therefore be dismissed. To this we think there is a plain and satisfactory answer.

Defendant never answered the petition. There was no issue joined, in any form, to be tried' by written or other evidence. Conceding that this was a case triable by the first method, if issue had been joined, yet as no issue was joined, the court could properly try it as one of d&fa/uM, and hence try it by the second method. Rev. §§ 3000, 3148. For defendant, though appearing by attorney, was, in fact, in default for want of an answer or other pleading. He seems to have stood upon his demurrer. The petition could properly be taken pro confesso, and no evidence was needed beyond the facts therein alleged and admitted, taken in connection with the exhibits duly attached and a part thereof. And there is the less difficulty in this view, when we remember that defendant on the final disposition of the cause was present by counsel, and neither then, nor at any other time, interposed the least objection to the proceedings or decree. And it is therefore held, that as defendant was in default for want of an answer, was present when the cause was submitted, making no objection, and as there was no issue to try, the court properly heard the case as one of default, and there being nothing to show upon what evidence the cause was heard in the court below, the judgment must stand

Affirmed.