In Barber v. Shattuck, 207 Iowa 842, 842, 223 N.W. 864, 865, the trial court had set aside a default judgment against the defendant, and the plaintiff appealed.Summary of this case from Ontjes v. McNider
March 5, 1929.
APPEAL AND ERROR: When Appeal Lies — Order Setting Aside 1 Default. An order setting aside a default judgment is inherently unappealable.
APPEAL AND ERROR: Jurisdiction — Objections to Jurisdiction —
Applicability of Statute.
Appeal and Error: 3 C.J., § 360, p. 527, n. 36; 4 C.J., § 2239, p. 492, n. 68.
Appeal from Woodbury District Court. — ROBERT H. MUNGER, Judge.
Originally the plaintiff-assignee sued the defendant for damages growing out of false and fraudulent pretenses. There was a judgment by default. Then the defendant made application to set aside the default, and the relief was granted. From this the plaintiff appeals. — Appeal dismissed.
J.P. Shoup, for appellant.
Prichard Prichard, for appellee.
The district court gave appellant default judgment against 1. APPEAL AND appellee. Thereafter, appellee made a timely ERROR: when motion to set aside the default, whereupon the appeal lies: district court allowed the application, and order vacated the judgment. From that judicial action setting appellant is now attempting to appeal. Does he aside have the right so to do? We are constrained to default. answer in the negative.
In Odell v. Coquolette, 103 Iowa 435, we said:
"* * * the default had been entered, but, notwithstanding, the order [setting aside the default] did not prevent a judgment from which an appeal might be taken. From that judgment plaintiff might not desire to appeal. If he did, he could, with a proper record, have reviewed the ruling on the motion to set aside the default. The question we consider is jurisdictional, and we are required to take notice of it, whether presented by the parties or not."
Again, in Sioux County v. Kosters, 194 Iowa 1300, the principle was reaffirmed. However, in the Kosters case, the appeal was not dismissed, but rather, the trial court was affirmed. That, nevertheless, was done, not as a matter of right, but as an act of grace.
Section 12885 of the 1927 Code has no application to the case at bar, because here the order was inherently 2. APPEAL AND unappealable, while the matters referred to in ERROR: that legislation are those wherein, by amendment juris- of the abstract or otherwise, jurisdiction can diction: be made to appear. Amendment of the record in objections this case could not present a jurisdictional to question, because the order is shown by and in jurisdiction:itself to be unappealable. Hence, under the applica- authorities aforesaid, we have no jurisdiction bility of of the appeal, and accordingly it must be, and statute. hereby is, dismissed. — Appeal dismissed.
ALBERT, C.J., and EVANS, FAVILLE, WAGNER, and GRIMM, JJ., concur.