#### James Callanan *et al.,*Appellants, v. Ætna National Bank of Hartford *et al.,*Appellees.

Practice: setting aside default: unavoidable casualty: discretion of trial court. Where a cause'was continued at the appearance term by stipulation between thb- attorneys for the respective parties, but a.t the next ensuing term, no further appearance being made on the part of the defendants, a default was entered, and at the term next following judgment was rendered upon proofs offered by the plaintiff, and at the next term after that the defendants appeared and showed that they were residents of a distant state; that they had no knowledge of the default and judgment until after the last preceding term, that the sickness of their attorney had prevented his attendance upon the *9court;, or to give the case any attention, and that they had a good defense to the action, *held,*the setting aside of the default was a matter resting in the discretion of the trial court, and no abuse of discretion was shown.

*.Appeal from Monona District Court.*— Hon. 0. H. Lewis, Judge.

Tuesday, October 27, 1891.

Action in equity to enjoin proceedings under certain executions and attachments affecting real estate, and to adjudge such proceedings of no force or effect against the lands in question. The action was commenced at the June, 1887, term of the court, and a temporary writ of injunction issued. At the September term of the court the parties appeared by their attorneys, and by written stipulation continued this and other causes “in which Callanan *et al.*are inter■ested.” At the November term of the court, there being no further appearance for the defendants, they were “all defaulted for want of answer,” and “the cause continued for proof.” At the February term of the •court, 1888, the defendants failed to appear, and the cause was submitted on the pleadings and evidence of the plaintiffs, and a judgment and decree entered for them in substantial accord with the prayer of the petition. The counsel appearing for the defendants when the stipulation for a continuance was filed was one Thomas F. Barbee. At the February term of the court, 1889, the defendants appeared by other counsel, Cole, McVey & Clark, and filed their motion to set •aside the default and judgment for the following reasons: *First.*There was no appearance on the part of the defendants, or either of them, and no service of notice. *Second.*The defendants were prevented, from sickness and causes which they could not control, from attending court at the term the default and judgment were entered. *Third.*Because the defendants have a *10good and sufficient defense to the case. *Foivrth.*For causes which prevented their attending on the hearing of this motion. The motion is supported by the affidavit of C. C. Cole, to the effect that Thomas F. Barbee was no longer an attorney in the case; that sickness of said Barbee had prevented his attendance upon court to prevent the default and judgment; that the defendants in interest were residents of Connecticut, and had no knowledge, direct or indirect, of the proceeding, and had not such information as to enable them to make the motion till since the last term of the-court; that, in the opinion of affiant upon examination,, the defendants have a good defense to the action; and. that the motion is made in good faith. The plaintiffs, thereafter filed a motion to strike the motion to set aside the default and judgment because of the condition of the record showing the time of the commencement of the suit; the appearance and stipulation to continue by Barbee; the failure to further appear; the default and judgment; the long lapse of time; no-defense shown to exist; and want of diligence. There is also the affidavit of the plaintiffs’ attorney in support of the motion, and to some extent contradicting the affidavit of Judge Cole. Upon the showing made, the district court overruled the appellants’’ motion to strike the appellees’ motion to set aside the-default, and sustained the motion of the appellees., From the order of the court thus made the plaintiffs *appeal.*

Affirmed.

*J. J. D'avis,*for appellants.

*Cole, MeVey*& Cheshire, for appellees.

Granger, J.

The appellees cite, in support of the action of the district court in setting aside the default and judgment, Code, section 3154. The section provides that the district court may vacate a judgment after the-term in which it is entered, for various reasons, and,, *11among them, *“seventh,*for unavoidable casualty or misfortune preventing tbe party from prosecuting or defending.” It may be said tbat, to our minds, tbe showing to set aside tbe default is not strong, but tbe rule has been long observed, and is well established, tbat such action by tbe district court is largely discretionary, and tbat this court will not interfere except in clear cases of abuse. In *Rogers v. Cummings,*11 Iowa, 459, it is said tbat, to justify this court in disturbing such a ruling, tbe abuse of discretion must be *“*clear and manifest.” See, also, *Marsh v. Colony,*36 Iowa, 603; *Westphal v. Clark,*46 Iowa, 262; *Willet v. Millman,*61 Iowa, 123, and *Gilbert v. Wilcox,*33 Iowa, 594. No objection was made in tbe district court to tbe proceedings being by motion instead of petition, and, under tbe ruling in *Town of Storm Lake v. Iowa Falls*& *S. C. Ry. Co.,*62 Iowa, 218, we must treat it as regular. Tbe affidavits of tbe respective attorneys constitute tbe evidence on tbe trial of tbe motion, and from such evidence and tbe record the district court could have found that tbe default and judgment were entered because of tbe sickness of tbe defendants’ attorney, for it unmistakably appears tbat at tbe time be was so sick in bed as to be unable to give tbe matter any attention, either in court or to counsel bis clients; tbat tbe defendants in interest were residents of Connecticut, and knew nothing of tbe default or judgment till after tbe last term of tbe court before tbe motion to set aside tbe default was made; and that, as a result, tbe defendants were prevented from defending by an unavoidable casualty or misfortune. These facts are quite apparent from tbe record. Tbe doubtful feature of tbe showing is tbe long delay after tbe judgment before presenting tbe motion, tbe evidence being far from specific as to tbe reasons for a want of knowledge on tbe part of tbe defendants as to tbe condition of tbe record for so long a time. The district court must have found tbat there were no laches, or, if laches, tbat they were without *12prejudice; and such a view has support in the record, when all considered. We think there is no abuse of discretion to warrant our disturbing the order of the district court, and it is affirmed.