
    McDonald v. Donaghue et al.
    
    1. Default: setting aside of : effect of amendments. A default will not be set aside, especially at a subsequent term, unless a sufficient excuse for tbe default is shown, accompanied by an affidavit of merits.
    2. -Nor would the default be waived or the rule changed by a subsequent amendment of the petition, merely bringing in new parties, and which in no manner affected the cause of action against or rights of the defendants in default.
    
      Appeal from Henry District Court.
    
    Friday, January 27.
    Action in chancery to subject certain land to a judgment recovered by plaintiff against James Sloughtery, who has since deceased. The petition alleges that the lands were conveyed by Sloughtery in his life-time, to defendant Donaghue, in trust for the use of the “ Sisters of Charity,” for the purpose of hindering the collection of plaintiff’s judgment. Other allegations of the petition need not be set out. Some of the defendants were made parties by an amended petition. June 16, 1868, all of the defendants then served with, the notice, except Donaghue, having faffed to appear, a default was entered against them. November 10, 1868, Donaghue having failed to answer, a default was entered against him. November 20, 1868, by an amendment to the petition, the “ Sisters of Charity ” were made defendants. A decree in accordance with the prayer of the petition was rendered against the other defendants, all of whom were in default. The cause was continued as to the “ Sisters of Charity.” November 15, 1869, a motion was made by all of defendants, against whom the decree was entered, to set aside the default, and November 30, 1869, the motion was sustained and the default was set aside. From this order plaintiff appeals.
    
      Amblers <& Babb for the appellant.
    
      L. G. Palmer for the appellees.
   Beck, J.

Revision, section 3150, provides that a default may be set aside upon application made at the term in which it was entered, but not without an affidavit of merits and a reasonable excuse being shown'for the default. These requirements were not observed in this case. The default had been entered more than a year — terms of court intervening between the date of the default and the term at which it was set aside. There was no affidavit of merits and no excuse shown for the default. The order of the court appealed from was, therefore, erroneous. Harper v. Drake, 14 Iowa, 533; Stone v. Brown, id. 595.

The motion to set aside the default is based upon the fact that the petition was amended so as to make the “Sisters of Charity” parties, after the other defendants were declared to be in default, of which they had no notice. This does not support the ruling of the district court. The amendment in no manner affects the rights of the defendants in default; it is not directed to that end. It is simply designed to bring in other parties who may have had an interest in the subject-matter of the suit. No additional cause of action against the defaulting defendants is set out in the amended petition, nor other relief claimed against them than is asked for in the original petition. It is very plain that their rights may be cut off by a default and decree, and those of the new defendants afterward settled. It may be conceded that an amendment of a petition, in matters affecting the rights of a defendant, will waive a default before entered against him. But as no such state of facts is shown by the record the rule is not applicable to this case.

Reversed.  