Weiser v. Larsen

Decided July 25, 1872

Supreme Court of Iowa · decided 1872-07-25

<p>PRACTICE.</p> <p>Action on a note for $600, made by defendants to plaintiff; the petition was filed April 7th, 1870, and notice duly-served for and returnable on the 18th day of April, that being the first day of the term. On the 19th, it being the second day of the term, the defendants filed an answer. On the same day, default was entered and judgment rendered for the amount of the note and interest. On the first day of January term, 1871, defendants moved to set aside the default, because an answer was on file when it was taken.' The default was set aside. On the 27th day of January, 1871, the plaintiff filed a supplemental petition, asking an attachment; the writ was issued and levied upon the defendants’ real property. The January term was adjourned to March 9,1872, and on the first day of the adjourned term, the plaintiff moved to set aside the order setting aside the default, and supported the same by affidavits; and the defendants resisted the motion upon affidavits. The court set aside the entry by which the default was set aside, and continued the motion theretofore made by defendants, to set aside the default. The defendants appeal.</p>

Decided 1872-07-25

Cole, J.

¶1The matter set forth in the affidavits of the respective parties, upon which the court based its ruling, appealed from, are not embraced in the abstract, and hence we cannot know but that the court ruled correctly. Every legal presumption is in favor of the correctness of the ruling of the court. The appellant must show error affirmatively. It is urged that the “ plaintiff recognized the setting aside of the default by filing a supplemental petition, asking an attachment after the default was set aside.” This is true; but the affidavits may sufficiently explain, and satisfactorily account for, this fact. Besides this, we cannot see that the defendants are prejudiced by the order appealed from, since their motion to set aside the default is still pending, and, for aught that appears, may be sustained. If it is overruled the defendants may correct any error therein by appeal.

¶2Affirmed.