Knapp, Stout & Co. v. Haight

Wright, J. 1. omgihau isnaSonofS" tie term. In Burr v. Wilcox, 19 Iowa, 31, the original notice required the defendant to appear “ on or before noon of the 29th, etc., being the second day of the next term, of the District Court.” The 29th was, in fact, the 4th day of the term, and yet it was held by a majority of the court (Cole, J., dissenting) that in the absence of a showing of prejudice, the court below did not err in refusing to set aside a default granted on the day named. That case is decisive of this. For we are all of the opinion, that as the day named (the 15th of May) was, in fact, the second day of the term, and as the notice fixed the very day at which defendant was required to appear, and the one designated by the statute, the failure to name the term was not fatal. There could in such case be no prejudice — no chance for surprise. In the cases referred to by appellant’s counsel (State Bank v. Van, 12 Iowa, 523, and those following), the defect was in omitting to name either the term or a definite day. They are clearly distinguishable from this. 2. - — . raie of court. As to the non-compliance with the rule of court, we only say that the rule does not require that a copy of the petition should be served with the notice, nor that any evidence of such service shall be preserved of record. The fact of service is not negatived by affidavit or otherwise. Conceding its application, therefore, to default cases (which, however, is by no means admitted), we can only presume that the rule was complied with.' In the absence of some showing we cannot presume that it was violated. ¿ictionThen, again, such service was not a jurisdictional prerequisite— there was no affidavit of merits, and for reason the'default should not have been set aside. Affirmed,