Byrnes v. American Mutual Fire Insurance

Waterman, J. [739] We prefer to consider the merits of the issue presented, and the conclusions we reach render it unnecessary to notice a number of questions raised by appellee which relate to the sufficiency of the record and to defendant’s standing in this court on appeal. This action was brought for the October term, 1899, of the district court, the original notice having been served in the month of July, and the petition filed in the month of August preceding. Default was entered on the tenth day of October, 1899. On the nineteenth day of the same month defendant filed its motion to set aside such default, supported by affidavits of [740] merits, and. accompanied by an answer wbicb set forth a defense. The showing of excuse is made by the secretary of defendant company, and, after stating that upon examination of the facts affiant believed defendant had a complete defense to the action, proceeds as follows: “I further state that I have had two or three interviews with A. H. McVey, Esq., an attorney at law, of Dos Moines, Iowa, concerning said cause, and the nature of said defense; that one of said interviews was before said suit was brought, and one or two afterwards; that I outlined to him, in a general way, all the facts which I had ascertained in connection with said cause, and I was advised by him that the same presented a defense to plaintiff’s claim. I further state that I am absent from the office a great deal in connection with the defendant’s business," and that I believed and thought I had placed the papers, proofs, and original notice in the hands of A. H. McVey, with a view to making a defense in said cause, but found that said papers had been misplaced in the office, and instead of being, as I supposed, in the hands of A. II. McVey, they were in . fact misplaced in said office, and I was thus misled in.supposing that the papers were in the hands of the said attorney with a view to making a defense in said cause; that there was no purpose or object on tire part of myself or said company to delay making an answer in said cause, or to delay the trial of said cause in any way, but that failure to make a defense and file an answer on the second day of the October term of this court was on account of unavoidable mistake and the misplacing of the papers, and the misapprehension upon my part as to what in fact had been done.” About all that is disclosed here is a matter of carelessness and inattention to duty on the part of this officer. This affords no ground for interfering with the action of the 'trial court. Sioux City Vinegar M. Co. v. Boddy, 108 Iowa, 538; Church v. Lacy, 102 Iowa, 235; Jones v. Leech, 46 Iowa, 186; Grove v. Bush, 86 Iowa, 98. A large discretion is reposed in the [741] trial court in passing upon applications of this kind. Mogelberg v. Clevinger, 93 Iowa, 736. We have in many cases affirmed the action of the trial court in setting aside the default, when we should not have reversed it had the holding been the other way. 2 II. It is said by counsel, and the answer tendered avers, that defendant is an assessment company, and has no funds with which to pay losses, save as'derived from assessments on its members, and therefore the court was without jurisdiction to render an absolute money judgment. The policy was in the ordinary form for $2,000. Nothing on its face indicated that it was not an absolute promise to pay the sum named in case of loss. As the case stood before the trial court, plaintiff was legally entitled to the judgment given. The provision of the by-laws set out in the answer tendered is as follows: “The funds of this company for the payment of losses and expenses of conducting its business shall consist exclusively of moneys raised by assessments and advanced payments upon the pledges and obligation given by the members of this company for their insurance.” If the company, in the face of this provision, chose, for a consideration received, to issue a policy promising payment of a fixed sum in case of loss, we think the assured would have a right of action at law to recover it. Follis v. Association, 94 Iowa, 435 ; Matthes v. Association, 110 Iowa, 222; Beach v. Wakefield, 107 Iowa, 567. Our conclusion is, there is no showing of a sufficient reason for interfering with the judgment rendered, and the same is therefore affirmed.