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CASES

IN

Law and Equity,

DETERMINED IN THE

SUPREME COURT

OF THE

STATE OF IOWA;

DES MOINES, JUNE TERM, A. D. 1863.

IN THE EIGHTEENTH YEAR OF THE STATE.

PRESENT:
Hon. CALEB BALDWIN, CHIEF JUSTICE,

GEORGE G. WRIGHT, JUDGE.

STIVERS v. THOMPSON.

15 1
91 327

1. SETTING ASIDE DEFAULT IN JUSTICE'S COURT. The appellate court will not

interfere with an order made by a justice of the peace, setting aside a
default, if made within the time prescribed by law, and without a clear

abuse of the discretion exercised.
2. MOTION TO SET ASIDE DEFAULT. The law does not contemplate notice to

the opposite party, of a motion to set aside a default in a justice's court.
When it is set aside and a new trial is granted, notice of the trial is neces-

sary. (Rev. 1860, § 3887.)
3. COSTS AFTER DEFAULT. Upon setting aside a default, the court will mako
such order in reference to costs as shall scem equitable.

VOL. XV.-1

Stivers v. Thompson.

Appeal from Tama District Court.

FRIDAY, JUNE 5.

ACTION before a justice of the peace. On the 13th day of November, the day of trial, a default was taken and judg. ment rendered for the plaintiff. On the 18th day of the same month the defendant filed a motion to set aside the default, which was on the same day sustained and a new trial ordered. The plaintiff removed the cause by writ of error, to the District Court. The order of the court below was affirmed by the District Court and the cause was remanded for a new trial. From this order of the District Court the plaintiff appeals.

William H. Stivers, pro se.

G. R. Struble for the appellee.

WRIGHT, J.-Judgment in favor of plaintiff, before a justice of the peace, which was set aside on defendant's motion; and to reverse this order plaintiff prosecuted his writ of error to the District Court.

The errors complained of in the affidavit for the writ are :

First. That the justice erred in setting aside the judg. ment by default. The law is, that the justice may set aside such a judgment within six days after being rendered, if a satisfactory excuse for the default is shown. Very much is necessarily left to the discretion of the justice, in judging of such satisfactory excuse. Unless it has been clearly abused, there should be no interference with its exercise. In this case, the affidavit shows that the defendant was at the office of the justice, by his attorney, before the expiration of the hour contemplated by $ 3867 of the Revision; that the justice was not there ; that he appeared again within the hour, according to the standard of time in the town

Like v. Bruner.

where the justice resided, but five minutes too late according to the magistrate's time; and there is a showing of merits. This showing is not contradicted by the magiştrate's return nor otherwise. There was most clearly no abuse of discretion in setting aside the default and judgmenta

Second. As to the second error, it is sufficient to say, that the law does not contemplate a notice to the opposite party of the motion to set aside a default. After the order is made, setting it aside, a new day is fixed for the trial and notice of that is to be given. ($ 3887, Rev. of 1860.)

Third. It is said, in the third place, that no order was made by the justice as to additional costs. The order was that the default be set aside at the costs of defendant. The statute is that such order shall be made in relation to the additional costs as the justice shall deem equitable. ($ 3889.) What more equitable rule appellant could ask than the one made by the justice, we are at a loss to conceive.

Affirmed.

LUKE V. BRUNER.

1. OBJECTIONS NOT MADE IN THE COURT BELOW. The Supreme Court will not

consider an objection to an interrogatory propounded to a witness whọn

such objection was not made in the court below. 2. PRESENTATION OF EVIDENCE. The plaintiff is not required to present his

evidence tending to show payment of a demand set up by the defendant as a set-off, until after the defendant has closed his evidence to establish such set-off.

Appeal from Tama District Court.

FRIDAY, JUNE 5.

The facts are fully stated in the opinion of the court.

Luke v. Bruner.

G. R. Struble for the appellant, cited Latterett v. Cook, 1 Iowa, 1; Stutsman v. School District No. 2, Madison Town. ship, Polk County, Id., 94; Brewington v. Patton and Swan, Id., 121; Sigler v. Woods, Id., 177; Porter v. Walker, Id., 456 ; Curts v. Scoles and Turner, Id., 471; Kiene v. Ruf, Id., 482; Floyd v. Mosier, Id., 512; Mackemer v. Benner, 1 G. Greene, 157; Saum v. The Board of Commissioners of Jones County, Id., 165.

W. H. Stivers for the appellee.

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WRIGHT, J.- To plaintiff's action, before a justice, defendant pleaded in denial and also a set-off. The set-off was denied, and as to part of the items plaintiff alleged payment After the parties had mutually introduced testimony to establish their respective demands, plaintiff proposed to show that part of defendant's account bad been paid. To this defendant objected, upon the ground that plaintiff had rested his case. The objection was sustained, and in the district court, on writ of error, this ruling was reversed.

Defendant, and appellant, seeks to reverse the cause : First, Because it does not appear whether the question objected to was asked before, or after, the plaintiff finally rested his case. Second, Because it was leading and sug. gested the desired answer. The latter ground is dismissed, with the remark that no such objection was made before the justice. He then placed his objection upon another ground, and cannot now be permitted to urge for the first time that the interrogatory was leading.

The first point is disposed of with equal ease. It is manifest that immediately after defendant bad concluded his proof to establish his set-off, plaintiff then proposed to show that part of it had been paid. How he could do it before, we cannot very well imagine. He was then called

O'Brien v. Young.

upon for the first time to answer, by proof, the defendant's cause of action, for such the set-off was and not a defense to plaintiff's action.

Affirmed.

O'BRIEN et ux. v. YOUNG.

1. CONVEYANCE OF THE HOMESTEAD. It is not essential to the validity of a

mortgage or deed of trust conveying the homestead, that the grantors state explicitly that it is the homestead which they wish to encumber: (re-afirming Babcock et ux. v. Hoey, 11 Iowa, 375.)

Appeal from Scott District Court.

FRIDAY, JUNE 5.

IN EQUITY. On the 22d day of June, 1858, the complainants executed a deed of trust, conveying the premises in controversy to H. B. Matthews, to secure the payment of two certain promissory notes executed on the same day to Samuel C. Young The premises, at the time of the execution of the deed of trust, were occupied by the complainants as their homestead, but were not described in said deed as a homestead. In the execution of the trust the property was sold by the trustee to Young. In an action at law for the possession, a judgment was rendered for Young, and a writ of possession issued. To cancel the deed of trust and restrain the execution of this writ, the plaintiff filed this bill. The defendant interposed a demurrer, which was sustained, and the plaintiff appeals.

Grant & Smith, for the appellant,
S. E. Brown, for the appellee.

BALDWIN, C. J.— The only question presented in this case is, whether a deed of trust upon the homestead by the

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