Conklin v. Johnson

Miller, J.

It is insisted by the appellants that the court erred in hearing and sustaining appellee’s motion to spt aside the judgment. They argue that, on the 7th day of March, 1871, when the motion was heard, being more than two years after the rendition of the judgment, the same could not be legally entertained against their objection.

The statute (section 8160 of the Revision of 1860), provides that, “ when a judgment has been rendered against a defendant, or defendants, served by publication only, and who do not, or any one or more of them, appear, such defendants, or any person legally representing him or them, may, at any time within two years after the rendition of the judgment) appear in court and move to have the action retried, and security for costs being given, they shall be admitted to make defense.”

It is insisted by appellants that this section required the defendant to appear in open eowrt and make his motion within two years; that the appearrance in open eowrt must be within the two years.

The motion was filed with the clerk, and notice thereof served on the plaintiffs, prior to the expiration of two years from the date of the judgment, but before the motion was heard in oyen court, a few days more than two years had elapsed. Indeed, the time expired before the commencement of the term of court. W e are of opinion that the motion was made in time, one of the methods of *268 making an appearance in court is by delivering to the clerk or the plaintiff a memorandum to the effect that the defendant appears. Rev., § 2840. The paper filed need not, m terms, state that the defendant appears. If he files an answer, or a demurrer, or a motion in the action, the “ effect ” is that he appears. But, appellants claim that this is but an appearance in the action, and not an appearance in court. It is difficult to discover how a defendant could appear in an action, without appearing in court. The action being in court, it seems too clear for argument that an appearance in the action is an appearance in court. It is not necessarily an appearance in open court, but the section of the statute above set out, does not provide that the defendant shall appear in open court. When a defendant is served with an original notice in the manner provided by the statute, he is deemed “in court.” Without being thus served, he will be deemed in comt to all intents and purposes, as if duly served with notice, by filing in the clerk’s office an answer, demurrer or motion in the action. See Revision of 1860, § 2840; Hale v. Van, Saun & Hunt, 18 Iowa, 16 .

The defendant appeared in court within the meaning of the statute, by appearing in the action. This he did by filing his motion with the clerk, and serving notice thereof on the plaintiffs. Such appearance was, within the two years, prescribed by the statute.

The order of the district court is, therefore,

Affirmed.