Western Fruit & Candy Co. v. Donegan

Evans, J. Judgments: vacation : passing of term: notice of proceeding to vacate: necessity. The plaintiffs herein were plaintiffs in a certain suit pending in the district court of Scott County against Harry J. McFarland and Isaac Petersberger as defendants, and such defendants are made defendants also in this proceeding. On March 22, 1915, being the last day of the term, a final judgment was entered for the plaintiffs against said defendants, the defendants being'in default for want of answer. On the next day, being the first day of the following term, the same judge presiding, the court on its own motion set aside said judgment. The plaintiffs in this proceeding challenge the validity of such order on the ground that the court had no jurisdiction to enter it. No formal application to set the same aside was filed by the defendants; no formal showing of merits was made; no notice was given to the plaintiffs. The defendants, however, were present in person and made a verbal request to the court to set aside such judgment; but no statutory provision was complied with for the purpose of obtaining such order. The case is ruled at all points by our holding in the recent case of Des Moines Union Ry. Co. v. District Court of Polk County, 170 Iowa 568. See also Owen v. Smith, 155 Iowa 463. We must hold, therefore, that the court was without power, under the circumstances disclosed, to set aside such judgment. It is therefore ordered that the writ issued herein be sustained and that the order of the district court’setting aside plaintiffs’ judgment be — Annulled. Deemer, C. J., Weaver and Preston, JJ., concur.