
    Russell v. Nelson et al.
    
    1. New trial: negligence: mistake oelaw. A new trial will not be granted to relieve a party from tbe results of bis negligence, or from a mistake on bis part as to tbe law.
    2.-statute construed. Section 3584 of tbe Bevision, giving tbe defendant two years in wbicb to file bis motion for a new trial, applies to actions for tbe recovery of real property, and not to an equitable action to quiet title.
    
      Appeal-from Lucas District Qowrt.
    
    Friday, July 28.
    Action in equity to quiet title to about thirty acres of land in Lucas county. The plaintiff avers that he purchased the land of William Nelson, who was in possession, claiming title to and was the owner of it; that the other defendants are the brothers and sisters of the 'said William; that the land was entered by Robert Nelson, a brother of William’s, who is deceased and intestate; that said Robert owned a large tract, of which this was a part, and of which William would be entitled to as much as the thirty acres in controversy, by descent; and further, that two of the brothers of said William had actually conveyed their interests in said large tract, and the other brothers and sisters had agreed to convey to said William, but that they and said William had fraudulently confederated together to cheat the plaintiff out of his title, and to that end had destroyed conveyances made to William, and had concealed others, etc. He asked that his title be quieted, etc. Service was made personally, or by publication on all the defendants. The defendant, David Nelson, who prosecutes this appeal, was personally served in Washington county, Pennsylvania, on the 10th day of August, 1868, for the then next November term of court, at which term, and on the 12th day of November, a default was entered against all the defendants; subsequently, at the same term, upon trial had, a judgment was entered, quieting the title in plaintiff.
    On the 20th day of October, 1869, the defendant, David Nelson, in vacation, filed a motion to set aside the default, and for a new trial, because: 1st. The decision was not sustained by sufficient evidence. 2d. The decision was contrary to law. 3d. He admits he was served with notice and made no appearance, for the reason that he lived in Washington county, Pennsylvania, and was well advanced in years, and poor, and knew that plaintiff had no title, and supposed he would take depositions before he could ask for a decree, and was surprised when he heard that a decree had been entered; that shortly after he heard of it he took sick, and was not able to come to Iowa to employ an attorney till in May, 1869. 4th. That justice demands a new trial, for he avers that in 1853 he furnished his brother Eobert the money to enter some land with; that said Eobert entered with said money the tract, including that in controversy, and obtained a patent in his own name; that Eobert always intended to convey the land to him, but in February, 1863, died suddenly, without doing so; that Eobert owed him about $5,000, and lie bad always permitted bis brother William, who bad no title to it, to occupy tbe land, with tbe understanding that if be paid what it cost to enter tbe land, and Bobert’s debt to bim, tbe land should be William’s; that William never paid any part of either; that be is tbe sole owner of tbe land in dispute, and be asks that a rehearing may be granted bim.
    This motion was overruled; tbe defendant, David Nelson, appeals.
    
      Wa/rrm S. Dimgcm for tbe appellant.
    
      Stu<wt Bros, for tbe appellee.
   Cole, J.

I. As tbe evidence upon which tbe district court made tbe decree in tbe case is not contained in tbe transcript, we cannot sustain either tbe first or second ground of tbe motion — that tbe decree was n0£ sustained by sufficient evidence, and was contrary to law.

II. Tbe party making tbe motion for a new trial admits that be was served with notice more than three months before tbe default and judgment were entered, and makes no excuse for bis failure to appear and defend, except that be knew tbe plaintiff bad no title and did not think be could get a decree without taking depositions. A clear mistake of law, from which tbe least degree of diligence would have relieved bim. Tbe negligence and total absence of any reasonable or even plausible excuse for it is too palpable to justify us in granting a new trial against tbe judgment of tbe district court which tried tbe cause, and perhaps beard tbe evidence refuting tbe improbable grounds under which tbe defendant now claims to be tbe sole owner.

III. Tbe counsel for appellant makes several points in bis argument, not made in tbe motion itself, and are not, therefore, fully disposed of in the foregoing paragraphs, which decide the questions directly made in the motion, as shown by the record.

It is first urged that in an .action to quiet title the defendant has two years in which to file his motion for a new trial. Rev., § 3584. This section applies to actions for the recovery of real property, and not to equitable actions like this, to quiet title. Besides, a new trial by that section is not granted, of course, but in the discretion of the court, it may be, at any time within two years. Tbe discretion in such cases, it is true, is to be liberally exercised. White v. Poorman, 24 Iowa, 108.

Again, it is urged that the plaintiff must recover upon the strength of his own title. Rev., § 3591. This is true, and in the absence of the evidence we must presume that he did. But this section, too, relates to actions for the recovery of real property. The same answer— absence of the evidence — will dispose of the third point in the appellant’s argument, to wit: that where a decree is against law it will be set aside — nor^constat it is against the law. So, also, of the point that Russell purchased with notice of Nelson’s equities. And finally, it is urged, that the plaintiff’s petition, even if taken as true, is not sufficient to sustain the decree. We need not set it' out at length; we have examined it with care, and it seems to us that by the most strict construction of equity pleadings the petition is sufficient; and, surely, under the doctrine of Harrison v. Kramer, 3 Iowa, 543 (i. e.) 557, that allegations indefinite and uncertain may have the certainty requisite for a proper decree afforded by proofs, there can be no question in this case.

No question is made, either in the motion for the new trial nor in the argument by appellant’s counsel here, as to whether the defendant, having been served personally out of the State, instead of by publication, is entitled to two years in which to appear and demand a retrial upon giving bond, etc., as provided in Revision, section 3160. Tbe question not being made, nor properly in tbe record, of course we do not pass upon it.

Affirmed  