Smith v. Watson

Dillon, Oh. J. l. pleading: tion. I. A petition to foreclose a mortgage contained in the body thereof the essential allegations describing the parties, setting forth the facts constituting the cause or action, the relief sought, etc., but was addressed as follows: “ To the judge of the District Court of Polk county, Iowa,” and failed to name the parties, plaintiffs and defendants, at the head thereof; nor was it headed with the word “ petition ” or the words “ petition in equity.” Held, that these defects were merely formal, and that the court did not err in refusing, on account thereof, to dismiss the action on the motion of the defendant. a default : practice. II. Where the defendant is personally served in time and enters an appearance, but fails to answer, and a default taken, held, that this court will not decide have been erroneous in the District Court to refuse to set aside the default, unless an affidavit of merits should be filed, although an affidavit of the defendant’s attorney is made, to the effect that he supposed the court had granted him sixty days from the date of the application in which to answer, on which he relied, [220] whereas the entry made was for sixty days from the date of completed service. 3. Pleading : claim for interest. III. A petition set forth in full a copy of a promissory note drawing interest, and alleged “ that said amount specified in said note is wholly due and un- . • *; paid,” and asked “judgment for the amount due by the said note.” Held, that it was not erroneous to include in the amount of the judgment the interest due on the note up to the date the judgment was rendered. Affirmed.