Ordway v. Suchard

Miller, J. — The court below has a large discretion in acting upon motions to set aside defaults, and it should never be exercised in favor of a party in default in consequence of his own negligence, or that of his attorney. Bolander v. Atwell, 14 Iowa, 35; Kreisinger v. The Icarian Community, 16 id. 586 ; McNulty v. Everett & Moore, 17 id. 581. Our statute provides that defaults may be set aside on such terms as the court may deem just, etc., but not unless an affidavit of merits is filed, and a reasonable excuse shown for making default, nor unless application therefor is made at the term at which the default was entered.. A naked default, on which no judgment has been entered, may be set aside at any time on proper grounds. Harper v. Drake, 14 Iowa, 534; Simmons v. Church, ante. But, when a judgment has been entered on the default, the motion must be made at the same term the default is entered. Id. In the case before us the defendants have complied strictly and fully with the requirements of the statute. They show that it was their intention to make defense to the action, that there was no negligence of either party or [488] attorney; that their failure to put in an answer within the proper time was purely accidental; and that, upon the first discovery of the fact that such time had passed, they were prompt in making application to set aside the default. The application also showed that the defendants had a meritorious defense, and that it was made at the term at which the default was entered. Upon this showing the default should have been set aside, and we are of opinion that, in overruling the motion of defendants, the coui’t exceeded the limit of its discretion. Whether applications to set aside defaxxlts may be resisted by counter affidavits, as in this case, we do not decide, as the question is not made; but, acting upon the theory, that such a practice is allowable, we hold that thex’e is nothing in the counter affidavit of plaintiff which weakens the case made by appellants, the judgment of the district coux-t is Reversed.