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Andrew Martin v. Eliza J. Reese
Gtranger, J.
[695] — The arguments: deal largely with the casé on its merits-, -as indicated by the issues made by the (pleadings. We first meet the question whether the-affidavit excusing tire default, is sufficient. In such' a case the party asking to have a default set' aside must plead issu-ability, and also present a reasonable excuse for the- -default. Joerns v. La Nicca, 75 Iowa, 705. In such a case we do- not interfere with
[696] the action of th'e trial' court except in clear case®, of .abuse of discretion. Rogers v. Cummings, 11 Iowa, 459; Marsh v. Colony, 36 Iowa, 603; Browning v. Gosnell, 91 Iowa, 448. The showing of excuse for the default is by the following affidavit: “I, W. H. McHenry, on oath, d!o state that I ami. the attorney for the defendants in the above-entitled cause of action; that I intended and attempted to enter my appearance on the calendar of this court in each case in which I was representing the defendants, so as to get the ten day® allowed for pleading by the .rules: of this court; that by some oversight I failed to get my name entered for the defendants in this case; that I made a list of my cases, in which. I was to enter my appearance, and went to the court house, and did enter my appearance in all of said eases, except that by some accident or oversight I omitted this case; that believing that I did enter my appearance in this case, and in compliance with the rules of this court, I did on the twentieth day of September file the answer of the defendant® in this case, which is hereby referred to., and made a part of this motion. W. H. McHenry.” It is not to. be said that the affidavit is such a conclusive showing of diligence that it was error not to so. find. It do e® mot appear what caused the accident or oversight, or what care was taken, to avoid such results, Ail that is said in the .affidavit can be true, and the accident or oversight be the result of negligence. Admitting that the court might have found diligence from the affidavit, it doe® not follow that it should have so found. There w.a® certainly no abuse of discretion in denying the motion, and the judgment must stand affirmed.