Breen v. Kuhn

Kinne, J. I. The facts in this case are that plaintiff commenced an action before a justice of the peace, against defendant. An original notice was issued, and placed in the officer’s hands for service. He made duo and proper service of it, except that in the copy which he gave the defendant he spelled the defendant’s name“Huhn” instead of “Kuhn.” His return showed proper service on defendant by the correct name. On; the return day, defendant not appearing, judgment was rendered by the justice against him. Within the-time allowed by law, defendant appeared, and filed a-motion and affidavit to set aside, the default because of' said error, and claiming that by reason thereof no-notice of the pendency of the action had been served upon him. To this showing he attached the copy off the notice left with him by the officer, in which his-name was given as “Huhn.” Whereupon, the justice-set aside the default, and set a time for the trial of the-cause. From the justice’s ruling, a writ of error was-taken to the district court, which sustained the writ, reversed the action of the justice, and remanded the: case to the justice, with instructions to overrule and deny the motion and application. To this order and judgment, defendant excepted, and obtained from the judge a certificate embodying the above facts, and setting forth the following questions of law, upon which, the opinion of this court is desired: 11 First. Did the justice of the peace err in setting aside the judgment by default, and granting a retrial of the cause! Sec 327 ■ond. Did the district court err upon the hearing in reversing the action of the justice of the peace, in setting aside the judgment by default, and in sustaining the writ of error sued out by plaintiff ? Third. Did the application and motion by the defendant Kuhn, filed with the justice, to have the judgment by default set •aside, and a retrial of the cause granted, give any discretion to the said justice whereby he was authorized under the law to set said judgment by default aside and ■order a retrial of the cause?” II. Our statute relating to the powers of justices ■of the peace provides: “Judgment dismissing the •cause, or by default may be set aside by the justice at ■any time within six days after being rendered, if the party applying therefor can show a satisfactory excuse.” ■Code, section 3543. Defendant based his application to ¡set aside the default upon the ground that, by reason of "the defective copy left with him, there had been no -such service of notice as gave the justice jurisdiction to •enter judgment in the case. Now, the notice given to the officer, and the return thereon, showed that defendant was sued by his right name, and that the notice was “read to and in the presence and hearing of William H. Kuhn,” etc. It is clear that, upon the notice -and return, the justice was warranted in rendering .judgment as he did. Was there a satisfactory excuse for setting it aside? It was said in Stivers v. Thompson, 15 Iowa, 2: “Very much is necessarily left to the discretion of the justice in judging of a satisfactory ■excuse. Unless it has been clearly abused, there should be no interference with its exercise.” Now, the facts ■set forth upon which the motion to set aside the default was based do not show, or even tend to show, that •defendant was in any way misled, whereby he failed to ■appear on the return day and make defense. See Browning v. Gosnell, 91 Iowa, —, 59 N. W. Rep. 340. There is mo claim that, by the reading of the notice to him by the 328 officer, he was not fully advised of the fact that he was-the man sued, and that the spelling of the name in the-copy was an error. But the defendant relied on said mistake as defeating the jurisdiction of the court to-enter a judgment. By a satisfactory excuse is not meant any excuse, no matter what it may be, that may satisfy the justice. But it must be such an excuse as, in law, will be satisfactory. This discretion which is-vested in the justice is a legal discretion, not .an arbitrary one, to be exercised regardless of legal requirements. It seems to us that the-excuse given was not. “satisfactory” within the contemplation of the law. In Journey v. Dickerson, 21 Iowa, 312, it is said: “In the-case of actual service, there is certainly much reason in the doctrine that, if the defendant is misnamed, he-should nevertheless appear and plead the same in abatement, or in some manner raise the objection; and that,, if he fails to do so, he shall not afterward be heard (especially in a collateral proceeding) to question the-regularity of the judgment. For, when thus served, he is advised by the writ, the law, and its officer, that-he is the man against whom the judgment is asked, and he at his own peril fails to give heed to the command.” We think the justice clearly erred in setting-aside the default and judgment on the showing made, and the district court properly' so held. The first: question, then, must be answered in the affirmative; the second and third questions, in the negative. The-judgment below is affirmed.