Boals v. Shules

Beck, J.

1. default: to set aside. I. The appellant insists that the court had no authority to set aside the default in the manner shown by the record, and relies, in support of this view, upon Revision, section 3150. This section requires such an order to be based upon an affidavit of merits, and reasonable excuse shown for having made the default. This section is evidently applicable to cases where defaults are actually made, and where the court has authority to render judgment thereon. In a case where in fact no default has been made by the defendant, the court has no authority to enter judgment as upon default. This would be so when no service of notice is made. The judgment of the court would be without authority. In such a case the court would clearly have authority to expunge, set aside or vacate the order for default, on the ground that it was made without authority. The court has control of its own record, and, for sufficient cause, may amend or expunge any entry, before it is signed or during the term at which it was made. Rev. § 26G6. This provision evidently applies to all entries made without authority, or upon a supposed state of facts, which are afterward proved not to exist. This court may, upon its own motion, under, this provision, correct its record. As its duty is to administer the law and do justice, it is required by the highest obligation to permit nothing to be made or remain of *509 record that is not in accord with truth and within its authority,

2. original insufüeiént. In the case before us the notice was not sufficient to require the defendants to appear and answer at the term the default was entered. It required appearanee at a day before the term ;• and the fact that it also required the appearance to be on the second day of the April term is not sufficient. Notices has been held insufficient which required appearance on the “ second day of the next term.” Decatur County v. Clements et al., 18 Iowa, 536 ; Van Vark v. Van Dam, 14 id. 232; The Des Moines Branch State Bank v. Van et al, 12 id. 523. The case before us is not different in principle from these.

The court, therefore, had no authority to render the default,'and for that reason, and because it was contrary to the actual facts, properly set aside the order.

3. — appearance: default. II. Appellants contend that the defendants appeared by their attorneys, and, therefore waived the defect in the notice. The appearance, if any, was made after the default was entei'ed, and for the purpose of pointing out to the court the error in its proceeding. This, in our opinion, is not such an appearance to the action as will cure the defect resulting from the unauthorized act of thé court in entering the default. A judgment or order entered without authority may certainly be corrected, at the proper time and in the proper manner, upon the application of the party aggrieved. It can hardly be claimed that by making the objection he cures the very defect complained of. It is a very different case from a parly appearing to object to insufficient notice. In such a case, it is held that the notice, by bringing the party into court, has served its proper office, and the party, being in court, is held to answer. In this case the party did not appear before the default was entered. The *510 notice being insufficient, and no appearance being entered for defendant, the default was not properly taken, and was objected to in a proper manner by defendants’ attorneys.

The point made by defendants’ counsel, that the service of a new notice, returnable to another term of the court, waives the right of plaintiffs to be heard upon this appeal, need not be determined. The decision of the court below must be affirmed upon the grounds above presented.

Affirmed.