
    McGrew v. Downs.
    1. Practice: time for appearance of defendant : power of court to fix by rule. Under § 180 of the Code, the district and circuit courts have power to make a rule requiring defendants, when so notified, to appear and plead by noon of the first day of the term, notwithstanding § 2599 of the Code, and that, upon failing so to do, default will be entered against them.
    2. Judgment by Default: on what terms set aside: affidavit of merits. A judgment by default cannot be set aside without an affidavit of merits on the part of the defendant. (Code, § 2871.) But such an affidavit must set out the facts constituting the defense, and not the affiant’s mere conclusion that he has a good defense. See authorities cited in opinion.
    
      Afjpeal from Pottawattamie District Court.
    
    Tuesday, December 15.
    Plaintiff brought this action against the defendant to recover damages for an alleged assault and battery. By the original notice defendant was cited to appear and defend before noon of the first day of the next term of the district court. On the first day of the term counsel entered an appearance for defendant, and announced that he would file au answer in the cause on the next morning. After this, and on the same day, counsel for plaintiff claimed a default, and the court entered a default against defendant. Four days after the default was entered defendant filed a motion to set it aside. This motion was overruled, and from this order defendant appeals.
    
      G. A. Holmes, for ajipellant.
    
      John P. Organ and C. P. <& E. II. Scott, for appellee.
   Reed, J.

In citing the defendant to appear and defend on the first day of the term., plaintiff proceeded under the following rule, which had been adopted by the judges of the district and circuit courts of the Thirteenth judicial district: “Rule 1. In all ,. . . . . .... cases the plaintiff may inform the defendant m the original notice that unless he appear thereto and defend before noon of the first day of the term at which he is required to appear, default will he entered against him; and when the defendant is served with such notice he shall demur or answer, or do both, as to the original petition before noon of the first day of the next term.”

I. It is contended that this rule is not authorized by statute, and hence that, as the statute (Code, § 2599) provides that the defendant shall be cited by the original notice to appear and defend before noon of the second day of the term, he cannot he adjudged to be in default before the second day. Section 180 of the Code provides that “the judges of the district and circuit courts in any district may provide by general rule (1) that the time of filing pleadings or motions shall be other than provided in this Code; (2) that issues in all or a part of the counties in such district shall he made up- in vacation; * * * (1) adopting such other rules as they may deem expedient, not inconsistent with this Code.” It is very clear, we think, that the power to adopt the rule in question is conferred by this section.

II. “ Default may be set aside on such terms as the court may deem just, among which must be that of pleading issuably and forthwith, but not unless an affidavit of merits be filed and a reasonable excuse shown for having made such default.” Code, S 2871. Ihis provision contemplates that the party shall set forth in his affidavit a statement of the facts constituting his defense. This was not done by the defendant in this case. He stated in general terms, however, that he had a good defense to plaintiff’s claim. But this is no more than the expression by him of the opinion that he had a good defense. This court has frequently held that this is not a compliance with the requirement of the statute. Jœger v. Evans, 46 Iowa, 188; King v. Stewart, 48 Id., 334.

The district court was justified on this ground in overruling the motion.

Affirmed.  