Simmons v. Church
Supreme Court of Iowa
Appeal from, Story Ovrawit Oov/rt. Action to foreclose a mortgage executed by N. B. Church to II.- E. Dally, dated May 5, 1869, making the mortgagor and D. W. Church, E. M. Burke, H. W. Kinney and S. Kinney parties defendants. The original notice was returnable at the May term, 1870, and on the 17th day of May, during said term, a default was entered against D. ~W. Church, and the cause continued as to N. B. Church, the mortgagor, for service of notice.
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Appeal from, Story Ovrawit Oov/rt. Action to foreclose a mortgage executed by N. B. Church to II.- E. Dally, dated May 5, 1869, making the mortgagor and D. W. Church, E. M. Burke, H. W. Kinney and S. Kinney parties defendants. The original notice was returnable at the May term, 1870, and on the 17th day of May, during said term, a default was entered against D. ~W. Church, and the cause continued as to N. B. Church, the mortgagor, for service of notice. No action seems to have been taken against the other defendants. At the next term of the court, in November, 1870, the defendant D. W. Church…
1Opinion of the CourtMiller, J.
1. default: discretion. — I. While the court below has a large discretion in acting on applications to set aside defaults, and this court will rarely interfere with the rulings 011 g,^ applications, yet it is the manifest duty of this court to do so when 'there has been a clear' abuse of discretion, or a misapprehension by the court below of its duty in the premises.
In the case before us, the court, on motion, struck from the files the application of the appellant, thus refusing to hear and pass upon its merits. The application was in time; a mere naked default having been entered, which may…
2Cases cited1 opinion
- Harper v. DrakeSupreme Court of Iowa · 1863
3Cited by6 opinions
- School District No. 82 v. TaylorSupreme Court of Kansas · 1877
- Ague v. SeitsingerSupreme Court of Iowa · 1892
- Edwards v. MontgomerySupreme Court of Oklahoma · 1910
- Rudolph v. DavisSupreme Court of Iowa · 1947
- Weinhart v. MeyerSupreme Court of Iowa · 1933
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