#### D. H. Hawthorne, Appellee, v. C. F. Smith, Appellee, et al., Appellants.

JUDGMENT: Setting Aside Default — Neglect. Record held to justify the refusal to open a default by reason of the neglect of the party and his attorney.

*Appeal from Monona District Court.*— W. G. SeaRS, Judge.

February 12, 1924.

Rehearing Denied May 16, 1924.

Appeal from the ruling of the trial court refusing to set aside a default, on the application of *appellants.*—

Affirmed.

*Don G. Lutz*and P. *W, Harding,*for appellants.

*H. B. Walling*and *Jepson, Struble & Anderson,*for appel-lees.

Preston, J.'

The default and judgment were entered November 18, 1920. This application was filed May 5, 1921, two terms of court having intervened. It was under Section 4091, Paragraph 5, of the Code, and on the ground of unavoidable casualty or misfortune, preventing a defense. No question is made as to the form of the application. The November term began ón the first day of November. The original notice, served October 11, 1920, at Charter Oak, in Crawford County, recited that the plaintiff’s petition would be on file October 22,1920, and *1307tbat default would be taken on tbe second day of tbe term, November 2d. Tbe petition was in fact filed by October 22d. As shown, tbe default was not in fact entered until more tban two weeks thereafter.

In appellant’s original application, filed May 5th, appellant stated, as bis sole ground for setting aside tbe default, that, *“shortly prim'*to said November term of court, defendant consulted personally with bis attorney, of Denison, Iowa, respecting tbe service of said original notice, and then and there retained tbe services of said attorney to defend tbe said action, and *delivered said notice to him.”*

By an amendment to the application, filed October 7, 1921, be withdrew tbe statement ‘ ‘ shortly prior to said November term of court, ’ ’ and states tbat said transaction occurred on tbe afternoon of *November 4,*1920. Tbe original application then goes on to say tbat, at the time stated, in tbe bearing and presence of defendants, tbe attorney immediately communicated with tbe clerk of said court at tbe county seat in Denison, by telephone from tbe office of tbe attorney, and stated to tbe clerk tbat be bad before him tbe original notice, and gave tbe title of tbe case to the clerk, and inquired of tbe clerk whether a petition bad been filed, as stated in tbe notice, and tbat tbe clerk informed tbe attorney that no such petition bad been filed; tbat, since he supposed that tbe action bad been abandoned, no further action was taken by way of defense. Tbe amendment before referred to further recites tbe matters before set out, as to tbe service of tbe notice in Charter Oak, etc. The application and amendment were submitted to tbe trial court, and were overruled December 6, 1921.

It appears that thereafter, on January 30, 1922, counsel for defendant orally requested the court for permission to again amend bis application by interlineation, or by adding thereto, as a further reason for bis default, tbe following:

> “Tbat, at tbe time of the service of the original notice in the principal case upon the said Geo. Scbleis, Sr., be requested tbe sheriff to hand tbe copy of the original notice to P. "W. Harding, bis present attorney, and ask him to look after tbe matter for him, and tbat tbe said sheriff failed and neglected so to do, and tbat tbe said attorney Imew nothing about the *1308matter until *after*default bad been entered in the principal ease. ’ ’

Said amendment was not filed. The court, on February 8, 1922, entered an order denying leave to so amend. The order and. record recites, in part, that the court “finds that the issues raised in the application and amendment were fully submitted, and that, on December 6, 1921, entered a judgment dismissing said application, and the court now being of the opinion that to permit the amendment requested would necessitate the setting aside of the judgment entered December 6th, and the introduction of testimony to sustain the new issues tendered by the amendment now offered, and the court being further of the opinion that, even if defendant were permitted to file *the*requested amendment and was able to sustain the allegations thereof by proof, that it would not be sufficient to excuse the neglect and de_fault of defendant in the principal case. It is therefore ordered that the request of said defendant to further amend his petition is denied.”

The trial court could perhaps, in its discretion, have opened up the matter, but under the circumstances, we think it was not required to do so, and did not abuse its discretion in refusing the request. Furthermore, we are impressed with the thought that the proffered amendment is not very material. It is clearly contradictory of other statements. The record shows a change of position in two or three respects. The proposed amendment states that the defendant requested the sheriff to deliver a copy to the attorney. This was on October 11, 1920. It also recites that the attorney knew nothing about it until *after*the default was entered (November 18th).

The original application as amended is to the effect that, on November 4th, defendant personally handed a copy of the original notice to his attorney. If this is so, then the attorney did know about the notice two weeks before the default was entered. True, if the default had been entered on the second day of the term, the delivery of the notice personally to the attorney would not have been in time; but the default was not entered until November 18th, so that, if the notice was delivered to the attorney on November 4th, it was in time to have prevented the default. This being so, it is not very material whether the de*1309fendant requested tbe sheriff on October 11th to give a copy of the notice to defendant’s attorney, and that the sheriff neglected to do so. There was no duty on the part of the sheriff to do as requested. His negligence, if any, is not the important point in the case. The question is whether defendant or his attorney was guilty of a want of diligence, under the circumstances. Furthermore, it would appear that, if the inquiry was made of the clerk on November 4th, the natural inquiry would be whether a default had been entered, rather than whether a petition had been filed. The notice had been served, and appears to have been brought to the'attorney after default day. It appears to have been stipulated, in brief, that the ease might be submitted on the pleadings, and that the files might be considered, and that, if evidence was introduced, it would tend to support the averments of the application. The matters set up in the showing as grounds for setting aside the default are denied by operation of law. Code Section 4092. Under the record, according to appellant’s contention, a considerable time before the default was entered, and on November 4th, or some other date prior thereto, defendant employed an attorney to look after his interests, and gave the attorney a copy of the notice. Nothing was done thereafter during the two weeks before default, and the petition or application to set aside the default and judgment was not filed, and nothing was done, until nearly six months after the default.

We may not have set out all the circumstances or discussed each fact separately. On the whole record, we are of opinion that the showing was not sufficient to show diligence on the part of defendant, and that the court did not abuse its discretion in overruling the application. As bearing on the question of diligence, the following, among other cases, may be cited: *Barto v. Sioux City Elec. Co.,*119 Iowa 179; *Reilley v. Kinkead,*181 Iowa 615; *Weitzel v. Lieuwen,*179 Iowa 1250. On the question of discretion, see the *Weitzel*case, supra; also, *Sioux City Vinegar Mfg. Co. v. Boddy,*108 Iowa 538; *Church v. Lacy & Co.,*102 Iowa 235; *Mogelberg v. Clevinger,*93 Iowa 736; *Grove v. Bush,*86 Iowa 94, 98; *Jones v. Leech,*46 Iowa *186.*— Affirmed.

Arthur, C. J., EvaNS and Faville, JJ., concur.