April 5, 1929.
APPEAL AND ERROR: When Appeal Lies — Order Setting Aside Default. An order setting aside a default is nonappealable, a fact which the appellate court will enforce on its own motion.
Appeal and Error: 4 C.J., § 2402, p. 590, n. 13.
Appeal from Webster District Court. — H.E. FRY, Judge.
Action at law, for damages for personal injuries. Defendant was defaulted, after which it made special appearance, moved to quash the service, and therewith alternatively moved to set aside the default. Motion sustained. Plaintiff appeals. — Appeal dismissed.
D.M. Kelleher, for appellant.
Helsell, Helsell McCall, for appellee.
In Barber v. Shattuck, 207 Iowa 842, an appeal by plaintiff from an order setting aside default was dismissed on the court's own motion. We need not repeat what is there said. Though no motion to dismiss is made in this case, and the question of the appealability of the order is not raised by appellee, yet, following the Barber case, it is our duty to take notice of the non-appealability of the order here attempted to be appealed from. This court has in some previous cases considered the merits of appeals from orders setting aside defaults. The attention of the court was not, in those cases, called to the question of non-appealability, and they are not to be taken as precedents for the consideration of the merits of an appeal from order setting aside default. Of course, if the motion to set aside default is overruled, then the case is finally disposed of, and a different rule would apply. — Appeal dismissed.
All the justices concur.