#### Andrew Martin v. Eliza J. Reese, *et al.,*Appellants.

2 Opening Default. There was no abuse of discretion in denying a. motion to excuse and set aside a default on the ground that the-failure of defendants to enter their appearance was cause d‘:by - some accident or oversight” on part of their attorney, where the affidavit failed to show what caused the alleged accident or oversight, or what care was taken to avoid such result.

1-.-SaSie. A defendant who asks to have his default set aside must plead! -issuably, and also present a reasonable excuse for ¡the default:

*695
      *Appeal from Polk District Court.*-Hon. T. F. Steven- . ■ son, Judge. •

Tuesday, May 24, 1898.

This is an action■ commenced August 14, 1895, on two promissory notes secured by mortgage, and asking judgment and decree of foreclosure. September 16,. 189.5 (it being the seventh day of the term), upon legal notice given, a default was entered, and judgment and ' decree given accordingly. Thereafter, and on the twentieth day of September, 1895, the defendants filed-a verified answer; and on the twenty-eighth day of October, 1895, they filed a motion, supported by affidavit, to set aside the default and decree because the sanie was erroneous, and because of facts appearing in the affidavit attached'to the motion. Thereafter the defendants filed an amendment to their answer, and the court afterwards overruled the motion, and the defendants *appealed.*—

Affirmed.

*Balliet & Stahl*for appellants.

*Phillips & Brennan*for appellee.

Gtranger, J.

1

*696
      2
      *695— The arguments: deal largely with the casé on its merits-, -as indicated by the issues made by the (pleadings. We first meet the question whether the-affidavit excusing tire default, is sufficient. In such' a case the party asking to have a default set' aside must plead issu-ability, and also present a reasonable excuse for the- -default. *Joerns v. La Nicca,*75 Iowa, 705. In such a case we do- not interfere with *696the action of th'e trial' court except in clear case®, of .abuse of discretion. *Rogers v. Cummings,*11 Iowa, 459; *Marsh v. Colony,*36 Iowa, 603; *Browning v. Gosnell,*91 Iowa, 448. The showing of excuse for the default is by the following affidavit: “I, W. H. McHenry, on oath, d!o state that I ami. the attorney for the defendants in the above-entitled cause of action; that I intended and attempted to enter my appearance on the calendar of this court in each case in which I was representing the defendants, so as to get the ten day® allowed for pleading by the .rules: of this court; that by some oversight I failed to get my name entered for the defendants in this case; that I made a list of my cases, in which. I was to enter my appearance, and went to the court house, and did enter my appearance in all of said eases, except that by some accident or oversight I omitted this case; that believing that I did enter my appearance in this case, and in compliance with the rules of this court, I did on the twentieth day of September file the answer of the defendant® in this case, which is hereby referred to., and made a part of this motion. W. H. McHenry.” It is not to. be said that the affidavit is such a conclusive showing of diligence that it was error not to so. find. It do e® mot appear what caused the accident or oversight, or what care was taken, to avoid such results, Ail that is said in the .affidavit can be true, and the accident or oversight be the result of negligence. Admitting that the court might have found diligence from the affidavit, it doe® not follow that it should have so found. There w.a® certainly no abuse of discretion in denying the motion, and the judgment must stand affirmed.