Acheson v. Inglis Bros.

Ladd, J. i. Judgment by default: vacation: statutes. I. The issues had been joined by the filing of an answer. Although the cause was set down for trial without the knowledge of defendants or their attorneys, and, when reached they did not appear, evidence was adduced and judgment entered. But such judgment was not by default, but on trial, in which the issues raised by the pleadings were passed on by the court. A default is the failure of a party to take a step ■ required by law in the progress of a legal action. 6 Ency. of P. & P. 60. At the common law, 'a judgment by default was entered when defendant failed to enter an appearance; but, if he entered an appearance añd failed to plead, the technical form of the judgment was by nil dicit. See Buena Vista Freestone Co. v. Parrish, 34 W. Va. 652 (12 S. E. 817); 6 Ency. P. & P. 59. But, where the issues have been joined, judgment entered in the absence of defendant is not by default. Seiberling v. Schuster, 83 Iowa, 747; Strine v. Kaufman, 12 Neb. 423 (11 N. W. 867); Covart v. Haskins, 39 Kan. 371 (18 Pac. 522). In this state, default is specifically defined by section 3788 of the Code: “If a party fails to file or amend his pleading by the time prescribed by the rules of pleading, [242] or, in the absence of rules, by the time fixed by the court, or if, having pleaded, his petition or reply on motion or demurrer is held insufficient, or is stricken out, and he fails to amend, answer or reply further as required by the rules of or by the court, or if he withdraws his' pleading without authority or permission to replead, judgment by default may be rendered against him on demand of the adverse party, made before such pleading is filed.” And it is such a default to which section 3790 of the Code refers in providing that “default may be set aside on such terms as to the court may seem just, among which must be that of pleading issuably and forthwith, but not unless an affidavit of merits is filed, and a reasonable excuse shown for having made such default nor unless application therefor is made at the term in which default was entered, or, if entered in vacation, then on the first day of the succeeding term.” This plainly appears from section 3789, exacting an inspection of the record to ascertain that notice has been given, as required, as a condition precedent to the entry of default; and section 3792, permitting the party in default to cross-examine the witnesses against him. The circumstance that a party fails to participate in the trial of issues previously joined does not characterize the judgment rendered as one by default; and section 3790 has no application in such a case. 2' ’ II. If, because of “accident or surprise which ordinary prudence could not have guarded against,” the defendants or their attorneys were deprived of a fair trial, the remedy would have been by motion, filed within three days after decision. Section 3756 of the Code. But “trial,” as referred to in that 'section is one in which the parties have participated. Not until after the term at which judgment is entered does section 4091 of the Code contemplate the filing of a petition for new trial on grounds enumerated therein. No statutory relief seems available in a case like [243] this, unless applied for after the term; but we are of opinion that, inasmuch as the court continues in control of its own record until the close of the term, it has inherent authority to enter such orders as may be essential to afford litigants opportunity actually to be heard on the issues raised by the pleadings, notwithstanding temporarily deprived thereof by unavoidable mistake or misunderstanding, casualty or misfortune. See Taylor v. Lusk, 9 Iowa, 444; Brace v. Grady, 36 Iowa, 352; State v. Daugherty, 70 Iowa, 439; Kirby v. Gates, 71 Iowa, 100; Chicago, I. & D. R. Co. v. Estes, 71 Iowa, 603; Flickinger v. Railway, 98 Iowa, 258. Nor will that strictness in proof exacted to warrant the setting aside a default, or in support of a petition for new trial, filed after the term, be required. That which is to be done to avoid default usually is known, and the excuse ordinarily relates to its omission, and a new trial on petition necessarily involves considerable delay; but, where a party who intends to participate in a trial fails to be present, this may be owing to not knowing when the cause is assigned for trial, or because his train is late, or he is otherwise unavoidably detained; and upon application, made at the same term, little delay need be occasioned nor much inconvenience suffered from an appropriate order setting aside the judgment rendered on ex parte hearing, and assigning the cause again for trial at which both parties may be represented. In the case at bar, the attorneys of defendants resided in another county, and observed necessary caution in arranging with Mulvaney to advise them of the day when the cause should be assigned for trial. The latter was suddenly called out of the state, and in the discharge of other duties this engagement was overlooked. In his absence, the cause was set for trial, and tried without the defendants or their counsel having knowledge thereof until some days after j’udgment had been entered. The good [244] faith of the attorneys is not questioned, and we are of, opinion the motion should have been sustained, on condition that the costs assessed at the former trial be first paid. Courts strongly favor hearings on the- merits; and, so long as the record continues subject to such orders as may properly be entered,' a liberal discretion should be exercised in affording parties opportunity to participate therein. The order of the court, overruling the motion is reversed.