Ronayne v. Hawkeye Commercial Men's Ass'n

Per curiam. The defendant’s excuse for its default and ground for its motion to reopen the case is, in substance: 1. Pleading: demurrer: effect of amendment: waiver. I. That when the default was entered there was on file a demurrer to the petition which had not been ruled upon. The record is against appellant on this point. It shows that a demurrer was filed at the appearance term. Counsel for plaintiff then asked time to examine the demurrer, saying that if they found their petition faulty they would amend within thirty days. About the same time counsel for de [617] fendant left court and went to his own home in Marshall-town, it being understood that the case would not be tried at that term. Plaintiff did at the end of thirty days file an amended and substituted petition, and this we think had the effect to render the demurrer of no farther moment. No' ruling upon it was required. 2. Judgments: default: vacation discretion. II. Defendant’s counsel makes affidavit that before leaving court at the spring term he had an oral agreement with counsel on the other side by -which the latter, in ease they concluded to amend or substitute their petition, would send a copy to defendant s eounsel and give the latter an opportunity to plead thereto; that .in fact no such copy was served, and defendant was justified in assuming that plaintiff had elected to stand upon his petition as first filed; and that the demurrer would be taken up and ruled upon before defendant was required to answer. But this statement is denied by plaintiff’s counsel, and as a rule the court will not undertake to settle controversies so arising or set aside defaults upon a disputed showing of verbal agreements not made in open court and record théreof preserved. The court should not be asked, and only in exceptional eases will it consent, to sit in judgment upon the comparative veracity of counsel in matters which might easily have been removed from the possibility of doubt by making them of record or reducing them to writing. We see nothing in this case to take it out of the rule. There appears to have been no haste to take advantage of counsel’s absence. The default was not taken until the third day of the term. Even upon defendant’s theory of the agreement its counsel should have been on hand not later than the second day of the term to look after his case; but for some reason he delayed his coming four days longer. There is a large discretion vested in the trial court in the matter of setting aside defaults, and under the circumstances related we cannot hold that such discretion was abused. [618] 3. Same. III. It is next said that, although the default was entered on the third day, the judgment record was not written up until about the time counsel for the defendant appeared. This we think is not a material consideration. jf defendant had made a meritorious showing, the court could, and no doubt would, have sustained its motion just as readily after the formal entry was made as before. The term was still in progress, and the court had full control over the records- 4. Time for filling pleadings computation. IY. Finally it is said the plaintiff himself was in default in not filing his amended petition within the thirty-day limit. The time given was thirty days. The last day of the period was Sunday, and the pleading was filed on the next day. This was in time. Code, section 48, par. 23. We find no sufficient reason for interfering with the discretion of the trial court, and the ruling and judgment complained of are Affirmed.