Spencer v. Berns

Sherwin, J. 1 2 The service on Mary A. Berns was by leaving a copy at her home with one Walter Berns, she not being present. It was claimed, and the trial court so found, that .said Walter-Berns was not a member of her family, nor of the family of her husband, but that he resided some distance therefrom. This finding of fact by the trial court is supported by the evidence, and we will not disturb it, under the well-settled rule that the trial court has a wide discretion in such matters, which will not be interfered with unless abused. There was no service on Mary A. Berns, and hence the court [128] had no jurisdiction to enter default or render judgment against her. Harmon v. See, 6 Iowa, 171; Lyon v. Thompson, 12 Iowa, 183; Le Grand v. Fairall, 86 Iowa, 211. 3 4 The appellant contends, however, that the motion to set aside the default should not have been sustained: (1) Bor the reason that the said Mary A. Berns did not comply with section 3790 of the Code, which requires the defendant to plead forthwith and file an affidavit of merits. A number of cases are citedi in support of this position, but upon examination they will be found to be cases where there was in fact service, but it was in some respects irregular. The rule does net apply where there was no service, as in this case. Arnold v. Hawley, 67 Iowa, 313; Henkle v. Holmes, 97 Iowa, 695; Hoiti v. Skinner, 99 Iowa, 360. (2) Because a motion will not lie to set aside a default. It must be sought “on appeal or by direct proceedings.” A motion to set aside a default is a direct proceeding as much as would be an action in equity. Whetstone v. Whetstone, 31 Iowa, 281; Lyon v. Vanatta, 35 Iowa, 521. But, if the motion were a collateral attack it would not for that reason be bad, for a void jucLment may be thus assailed. Kitsmiller v. Kitchen, 24 Iowa, 163; Lyon v. Vanatta, supra. That a void judgment may be set aside on motion has been held in Allen v. Rogers, 27 Iowa, 106; Harshey v. Blackmarr, 20 Iowa, 161; Shelley v. Smith, 50 Iowa, 543. In fact, it would seem to be a sound rule that a void judgment may be set aside at any time, unless, perhaps, innocent persons might plead laches which would defeat such action. Jordan v. Brown, 71 Iowa, 421. Many cases are cited to the effect that the court determined from the notice before it that it had jurisdiction, and that it was therefore an adjudication which could only be corrected on appeal. These cases are not in point, as we have heretofore shown. The order setting aside the default is affirmed. — -