Vark v. Dam

Decided December 6, 1862

Supreme Court of Iowa · decided 1862-12-06

Foreclosure of a mortgage. The original notice requires the defendants to “ appear and answer, on or before noon of the second day of the next term of said District Court. The defendant appeared by counsel, but filed no answer. Judgment and decree by default, and the defendant appeals. cited Des Moines Branch ■ of the State Bank v. Van et al., 12 Iowa, 528; § 2840, Rev., 1860. cited Pigman v. Denney et al., 12 Iowa, 396; McKinley v. JBetchtell, 12 Iowa, 561; Bellv.

Decided 1862-12-06

Baldwin, C. J.

¶1Tbe original notice, served upon tbe defendant, was clearly defective in not stating tbe term at wbicb be was required to appear. See Code, § 2812; Branch State Bank v. Van et al., 12 Iowa, 523.

¶2Tbe record, however, shows that when tbe cause was submitted, tbe defendant appeared by bis attorney, but failed to file an answer, and judgment was rendered by default. This appearance waived tbe defective service.

¶3Again, tbe defendant, under tbe provision of § 3548 .of tbe Revision, should have moved for tbe correction of this error in tbe District Court. See Pigman v. Denney, 12 Iowa, 396; McKinley v. Betchtell, Id., 561; Bethel v. Leay, infra.

¶4Affirmed.