Legal Opinion

Gilbert, Hedge & Co. v. Wilcox

Supreme Court of Iowa

Decided February 24, 1871PublishedCited by 1 opinion

Appeal from Lucas Circuit Court DEFAULT. This action was commenced to establish a mechanic’s lien for lumber furnished to Darius Wilcox and used in a building on premises, on which Darius P. Wilcox held a mortgage. On the 30th day of May, 1871, defendants filed a demurrer to the petition which, being sustained, the plaintiffs, on the same day, filed an amended petition asking judgment and the establishment of their lien, and that the property he sold, etc.

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Appeal from Lucas Circuit Court DEFAULT. This action was commenced to establish a mechanic’s lien for lumber furnished to Darius Wilcox and used in a building on premises, on which Darius P. Wilcox held a mortgage. On the 30th day of May, 1871, defendants filed a demurrer to the petition which, being sustained, the plaintiffs, on the same day, filed an amended petition asking judgment and the establishment of their lien, and that the property he sold, etc. An order was made on the same day that the defendants have thirty days to plead to the amended petition, and the cause was continued. At…

1Opinion of the CourtMiller, J.

In acting upon an application" to set aside a default,

the court has a very large discretion, and this court will not interfere unless there has been a clear abuse of discretion or a disregard of some legal requirement. See State v. Elgin, 11 Iowa, 216; Stone v. Brown, 14 id. 595; Thatcher v. Haun, 12 id. 303; Harper v. Drake, 14 id. 533; Clark v. Hedge, 10 id. 528; Rogers & Tallman v. Cummings, 11 id. 459.

A default may be set aside on such terms as the court may deem just, among which must be that of pleading, issuably and instanter, but not unless an affidavit of merits is filed, and a…

2Cases cited1 opinion

  1. State v. ElginSupreme Court of Iowa · 1860

3Cited by1 opinion

  1. Callanan v. Ætna National Bank of HartfordSupreme Court of Iowa · 1891

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