Heald v. House , 39 Iowa 198 ( 1874 )

Day, J.

A rule of court in the circuit in which. this cause was tried is as follows:

“ In all appeals in civil cases from justices’ courts, mayors’’ courts, or other inferior tribunals, if the appellant fails to docket his appeal and pay the docket fees by noon of the second day of the term at which the appeal is triable, the appellee may have the appeal docketed and the judgment below affirmed.”

Erom the statement of this case it appeal’s that the appellee did not pay the docket fee and procure an aiffirmance of the cause until the ninth day of the term. During the whole of this time the attorneys of appellant were present in court, and by the exercise of a very slight degree of attention and care might have discovered that the cause had not been docketed, and could have had it placed upon the docket.

Not only was there this long delay, but the motion to 'set the order of affirmance aside was not made until the sixth day after the judgment was affirmed, and the fifteenth day of the term.

Such delay might, and probably would, very seriously compromise the rights of the opposite party. ■ He could not be expected to be in attendance the whole term with his witnesses, awaiting the action of his opponent. When the judgment was affirmed, at least it may be supposed that he would permit his witnesses to withdraw. The probable effect of setting aside the order of affirmance and holding the cause for trial would be a continuance. The court below, it must be presumed, regarded and was governed by all these considerations in the overruling of the motion. Appellant might have .prevented the results of which he complains by the exercise of reasonable watchfulness and diligence.

We cannot say that the court below erred in refusing to set aside the order of affirmance.

Affirmed.