Klepfer v. City of Keokuk

Bishop, J.— The default judgment was entered by the superior court on April 11, 1904, and a transcript was at once taken by plaintiff, and filed in the office of the clerk of the district court of Lee county. The motion by defendant to set aside the judgment was filed on April 13, 1904, and during the term of court at which the judgment was entered. T‘ judgments: scttmg aside. I. The first contention presented by appellant is that the court below was without jurisdiction to set aside the default, in view of the fact that a transcript of the judgment had been filed in the office of the clerk of the district court. This contention cannot be sus-Gained. The superior court has jurisdiction concurrent with the district court in all civil matters save in certain respects not material to be here considered. Code, section 260. And the statutes governing procedure in the district court apply to such courts, unless otherwise specially provided. Code, section 263. Judgments by default entered in the district court may be set aside on such terms as to the court may seem just, application being made therefor during the term at which the judgment was entered. Code, section 3790. [594] 8’ ofTS’ [593] Counsel for appellant relies, however, upon the provisions, of Code, section 273, relating to superior courts, and which are as follows: “Judgments in said courts may be [594] made liens upon real estate * * * by filing transcripts of the same in the district court, as provided in this Code in relation to judgments of justices of the peace, and with equal effect, and from the time of such filing they shall be treated in all respects as to their effect and mode of enforcement as judgments rendered in the district court as of that date, and no execution can thereafter be issued from the said superior court on such judgments,”' etc. Code, section 4531, authorizes the filing in the district court of transcripts -of judgments entered by justices of the peace, and the succeeding section provides that from the filing and entry of the transcript the judgment “ shall be treated iir all respects and in its enforcement as a judgment obtained in the district court. No execution shall issue from the justice’s court after the filing 'of such transcript.” The filing of a transcript in the district court has to do with the matter of the enforcement of the judgment; the judgment becomes a judgment of the district court for such purpose, and such only. It was never intended by the statues thus providing for a manner of enforcement to forbid the court entering the judgment from controlling the same in respect of other matters authorized by law. Not only has the superior court power to set aside defaults and grant new trials, but a justice of the peace may set aside a default judgment at any time within six days after being rendered. Code, section 4513. To say that the right of a judgment defendant may be cut off by the act of the judgment plaintiff in taking a transcript is to render nugatory such statute provisions. However meritorious the right, the district court cquld grant no relief, as it has jurisdiction only to enforce. And the argument of counsel for appellant, should we follow it, would lead to a holding that no appeal could be allowed áfter a transcript has been taken. If all connection of the court rendering the judgment was cut off by the transcript, and such [595] judgment became in all respects as if originally entered in tlie district court, there would be no way to reach the court charged with the commission of error. The district court •would have no record upon which an appeal might be predicated, or upon which to try the case anew should there be an order for remand and new trial. It must be apparent that the contention of appellant is without force. The cases of Little v. Devendorf, 109 Iowa, 47, and Oyster v. Bank, 107 Iowa, 39, are not in conflict with the conclusion thus reached. S' def!ult£side II. It is next urged in argument by appellant that no sufficient excuse for the default was shown to authorize the order setting it aside. The subject-matter is very largely committed to the discretion of the trial judge, anc^ we will ^ interfere except in a clear case of abuse. While negligence pure and simple on the part of the defendant or his attorney will not be sufficient to excuse a default, yet, short thereof, many circumstances and conditions may be accepted when shown, although not wholly blameless. A busy lawyer will occasionally mislay papers, or the intensity of interest in one case may cause him to forget momentarily what is due from him in respect of another. It is for the trial court to judge of the merits of the excuse in all such cases. Ordway v. Suchard, 31 Iowa, 487; Jean v. Hennessy, 74 Iowa, 349; Barto v. Electric Co., 119 Iowa, 179. In the instant case it is reasonably made to appear that the failure to enter an appearance was an oversight due to the papers in the case getting misplaced. It also appeal’s that a change in the incumbency of the office of city attorney took place about the time, from which some confusion resulted. In any event, the record does not warrant us in finding that the trial court abused its discretion. [596] 4. Affidavits of merit. [595] III. As a prerequisite to the setting aside of a default, the statute requires that the defendant file an affidavit of merits, and plead issuably forthwith- Here the defendant [596] answered, denying generally. There was also filed tbe affidavit of the city attorney to the effect that he had arL investigation into the facts and circumstances of the accident complained of by plaintiff, and therefrom believed that such accident was not caused by any negligence on the part of defendant or its officers or agents, but that the same was due solely to the negligence of plaintiff. This was sufficient. True, the affiant states his belief merely, but it must be remembered that a finding of negligence or of the absence thereof is nothing more or less than a conclusion, and it would be unreasonable to require the^setting forth of all the facts and circumstances, and the inferences and presumptions to be drawn therefrom, upon which the conclusion was made to rest. Our attention is not called to any authority which imposes such a requirement. From what we have said, it follows that the order appealed from must be, and it is, affirmed.