
    H. J. Liggett, Appellant, v. J. B. Worrall and Mrs. J. B. Worrall.
    Setting Aside Default: discretion. A judgment of default against a husband and wife for family necessaries, part of which debt was incurred before the marriage, may be set aside at the discretion of the court at the following term, under Iowa Code, section 3154, on the ground that the husband, who looked after the case, was of feeble mind and was led to believe that no judgment would be taken and was prevented by sickness from preparing for the defense.
    
      Appeal from Story District Court. — Hon. D. R. Hind man, Judge'.
    Monday, May 25, 1896.
    On April 9,1894, the defendants filed their petition under section 8154, of the Code, to set aside a default and judgment rendered against them in this case, at the preceding February term of said court, and for leave to defend against plaintiff’s cause of action, and to restrain the sale of certain real estate under special execution issued on said judgment. The petition was entitled as in equity, and, plaintiff’s motion to try the case on written evidence being sustained, it was tried as an equity cause, without objection, upon the allegations of the petition, which under section 3155 of the Code, stood denied without answer. Decree was entered granting the relief prayed, from which plaintiff appeals.
    
    Affirmed.
    
      
      I. W. Douglass and Geo. W. Dyer for appellant.
    
      Martin & Bartlett for appellees.
   Given, J.

I. The defendants present an answer to plaintiff’s petition, which, if sustained, is a complete defense to at least a part of the plaintiff’s claim. They also present evidence tending to support their defense. The grounds upon which it is sought to set aside the default and judgment is irregularity in obtaining the judgment, for that it is on account for family necessaries, a portion of which it is alleged was incurred prior to the marriage of the defendants, and for this reason it is charged that fraud was practiced by the plaintiff in obtaining the judgment. The remaining ground is unavoidable casualty and misfortune, preventing the defendants from defending the action, for that the defendant, J. B. Worrall) who assumed to look after the case, was a man of feeble mind, and was led to believe that no judgment would be taken, and was prevented by sickness from preparing for the defense. The question whether, under the evidence, this default and judgment should be set aside, was one addressed largely to the discretion of the court. We will not discuss the evidence, though we may say, as was said in Callanan v. Bank, 84 Iowa, 8 (50 N. W. Rep. 69): “It may be that, to our minds, the showing to set aside the default is not strong, but the rule has been long observed, and is well established, that such action of the district court is largely discretionary, and that this court will not interfere except in clear cases of abuse.” We do not think there was any abuse of the discretion lodged' in the court in granting the prayer of this petition. — Aeeirmeb .  