
    K. W. Ellis v. H. M. Remley, Judge.
    1 Decrees: vacation during term: When invalid. An order vacating a decree entered upon’ an application made at the same term of court, but more than three days after entry of such decree, without notice to the adverse party is conceded arguendo to be invalid. *
    2 ■Confirmation of invalid order. A decree was vacated, upon defendant’s application, during the same term, but more than three days after entry thereof, without notice to plaintiff. Subsequently, during the same term, plaintiff moved to set aside the vacating order and to reinstate the decree for want of notice and insufficiency of application. Held, that the decision of the court on the merits confirming the vacating order as originally entered rendered the order valid.
    
      ■Certiorari from Lynn District Court. — Hon. H. M. Eemley, Judge.
    Saturday, January 25, 1902.
    In a cause pending in the district court of Linn county, wherein plaintiff sought judgment and the foreclosure of a mechanic’s lien against James McGuire, issues had been joined, and the case set down for trial November 12, 1900. When called, McGuire and his attorney failed to appear,- and the court, after hearing the evidence adduced by plaintiff, ordered relief as prayed, and two days later signed a •decree therefor in due form, which was spread upon the records. On the 19th day of November McGuire filed a motion tp set aside the judgment, and, though no notice had been served on plaintiff, the court, December 1st, sustained It upon the payment of costs of the trial and of entering judgment, which was done. December 11th the plaintiff moved that the order vacating the decree be set aside, and said decree be reinstated. All this oceured during-the November, 1900, term of court, and before the record was signed, and on January 11, 1901, of the succeeding term,, both parties appearing, this last motion was overruled. In .the petition for writ of certiorari the defendant is_charged with having exceeded his authority in setting aside the decree without notice.
    
    Dismissed.
    
      *L. M. Kratz for plaintiff.
    
      J. II. Grosby for defendant.
   Ladd, C. J.

It may be conceded that, subsequent to-the three days allowed after the entry of the judgment within which to move for a new trial, the adverse party should be given notice of an application to vacate or modify a judgment, though at the same term of court, Perry v. Kasper, 113 Iowa, 268; Hawkeye Ins. Co. v. Duffie, 67 Iowa, 175; Townsend v. Wisner, 62 Iowa, 672; Chicago, Iowa & Dak. Co. v. Estes, 71 Iowa, 603. But conceding the invalidity of the order vacating the decree when originally made, was it not fully confirmed by the subsequent ruling ? The plaintiff’s motion to set aside that order and reinstate the decree was based on two grounds: (1) Absence of notice, and (2) insufficiency of facts stated in the application to set aside the decree. To this McGuire-appeared. The court then had jurisdiction of the parties. What was it called upon to determine? First, whether the-order was improperly entered without affording plaintiff opportunity of being heard. This undoubtedly had been done, and, had the motion contained nothing more, the decree must have been reinstated. In that event McGuire’s application to set it aside would have been still pending and undecided. But it would be idle to reinstate the decree-if immediately thereafter it must be vacated upon the consideration of McGuire’s application. Hence the plaintiff also invoked a ruling on the merits of said application at the same hearing by asserting, as the second ground for vacating the order granting a new trial, failure to state “sufficient facts to entitle him to tbe relief prayed.” No question is now made but that tbe facts stated were sufficient, and we think tbe ruling of tbe court in denying plaintiff’s motion tantamount to saying that, though tbe order setting aside tbe decree and granting new trial may have been invalid for want of notice, yet, on full hearing, it is found to be such as the record exacted, and should therefore be confirmed. In other words, plaintiff’s motion no more than called for a reconsideration of McGuire’s application, owing to want of notice, and demanded a ruling on tbe merits. Instead of reinstating the decree, and immediately vacating it, tbe court, by overruling tbe motion, confirmed tbe order as originally entered. When thus approved, tbe court was with jurisdiction, and tbe order made valid. — Dismissed.  