1. Court's Discretion in Vacating Judgments. See statutes of Arkansas, Iowa, Kansas, Nebraska and Ohio; Freeman on Judg. (3rd ed.), § 105.

These various statutes are not applicable to motions to vacate judgment made within the term. McCullock v. Doak, 68 N. Car. 267.

If relief is sought on some of the grounds enumerated by the statute, it must be within the time mentioned therein. Gerrish v. Johnson, 5 Minn. 23: Woolley v. Woolley, 12 Ind. 663; Knox v. Clifford, 41 Wis. 458.

But if the ground for vacating the judgment be one not dependent on the statute, as that it was irregularly entered, the motion may be granted after the statutory time. Čowles 7. Haynes, 69 N. Car. 406.

Relief may be had in equity after the statutory time has elapsed, provided proper reasons are shown for not making such application. District Township v. White, 42 Iowa 608; Bond v. Epley, 48 Iowa 600.

A judgment cannot be vacated under the statute for error of law. Spafford v. Janesville, 15 Wis. 474; Landon v. Burke. 33 Wis. 453.

If the party seeking relief was properly represented at a trial which was had, he should move for a new trial and not to vacate the judgment under the statute. McCullock . Doak, 68 N. Car. 267.

But if not there and not represented on account of any of the statutory causes, he may move under the statute. McKinley v. Tuttle, 34 Cal. 239.

The sickness of a county judge preventing his attendance and defence of a suit against the county during the entire term of the circuit court, and the omission of the prosecuting attorney to defend on account of having been of counsel, and being a witness for the plaintiff in the suit, do not constitute such a case of "unavoidable casualty or misfortune, preventing the party from appearing or defending," as is contemplated by the Arkansas statute. Izard County v. Huddleston, 39 Ark.

107.

Nor does the cutting of the defendant's foot before service of summons, whereby he is detained from attending

to the suit. Gardenhire . Vinson, 39 Ark. 270.

2. An order under the statute, granting or denying the vacation of the judgment, is subject to review in an appellate court. Haight 7. Green, 19 Cal. 113; Mulholland . Heyneman, 19 Cal. 605; Weisenborn 7. Newmann, 60 Cal. 376; Hill v. Crump, 24 Ind. 291; Albright v. Warkentin, 31 Kan. 442.

The discretion exercised in vacating or refusing to vacate a judgment is a legal discretion to be exercised in conformity with law. Bailey v. Taaffe, 29 Cal. 422; Schoonmaker v. Albertson etc. Co., 51 Conn. 387; Powell v. Weith, 68 N. Car. 342; Johnson v. Eldred, 13 Wis. 342; Midkiff v. Lusher, 27 W. Va. 439.

But the court's order will not be set aside unless there is an abuse of its discretion. Ewing v. Peck, 17 Ala. 339; Woodward v. Backus, 20 Cal. 137; Howe . Independence Co., 29 Cal. 72; Roland v. Kreyenhagen, 18 Cal. 455; Mason v. McNamara, 57 Ill. 274; Frazier v. Bishop, 29 Mo. 447; Henderson v. Gibson, 19 Md. 234; Merritt v. Putnam, 7 Minn. 493; Wooster v. Woodhull, 1 Johns. Ch. (N. Y.) 539; Palmer 7. Hutchins, I Cow. (N. Y.) 42; Bank . Robbins, 67 Wis. 68 Cleveland v. Hopkins, 58 Wis. 387; Parsons' Bank 7. Wentworth, 28 Kan. 183; Pry v. Hannibal etc. R., 73 Mo. 123; Huntington v. Finch, 3 Ohio St. 445: Brophy . Brunswick & Balke Co., 2 N. Y. 86; Wernet's Appeal, 91 Pa. St. 319; Hickernell's Appeal, 90 Pa. St. 328; Earley's Appeal, 90 Pa. St. 321.

It was held not be an abuse of discretion for the court, upon a proper showing, to set aside a judgment of dismissal, without notice to the other party; and if there was a technical error it was cured by permitting the defendant to be heard on a motion to reinstate the judgment. Yetzer v. Martin, 58 Iowa 612.

Where an order setting aside a judgment by default for $5,616.80, and permitting the defendants to answer, was made upon condition that the defendants file a bond with sureties, in the penal sum of $10,000, for the payment of any judgment which the plaintiff might finally recover, it was held that it was

an abuse of discretion to impose terms so severe, and the court below was directed to permit the defendants to answer, and allow the judgment to stand as security for the plaintiff's claim. Union Nat. Bank v. Benjamin, 61 Wis. 512.

Under some statutes, where the party seeking to have a judgment vacated has performed certain conditions, the court has no discretion to refuse to open up the judgment. Savage v. Aiken, 14 Neb. 315; Strine v. Kingsbaker, 12 Neb. 52; Clendenning v. Črawford, 7 Neb. 474. But the Nebraska statute was held not to apply where defendant had entered an appearance in the action. Strine v. Kaufman, 12 Neb. 423.

1. Freeinan on Judgments (3rd ed.), § 102. See also Bailey . Clayton, 20 Pa. St. 295; Gay v. Gay, 10 Pai. (N. Y.) 374; King 7. Merchants' Exchange Co., 2 Sandf. (N. Y.) 697; Bard v. Fort, 3 Barb. Ch. (N. Y.) 632; United States v. Millinger, 17 Blatchf. (U. S.) 451.

But not, it is said, where the judgment is void for want of jurisdiction. Hanson v. Wolcott, 19 Kan. 207. Or where it was entered contrary to the requirements of the statutes or the rules of court. Doan v. Holly, 27 Mo. 256. See also Hughes 7. Wood, 5 Duer (N. Y.) 603.

Where a judgment is opened generally and without terms, the plaintiff is put to his proof of cause of action precisely as if no other judgment had been entered. Any defence which would have been available to the defendant, if an action had been brought, instead of a judgment entered upon the instrument in suit, may be set up on the trial. The burden of proof is upon the plaintiff, and he must make out his case subject to the defendant's right to defeat him, upon any ground that would have sufficed for that purpose if no judgment had been entered. Sussong 7. Rosar, 112 Pa. St. 197; Borchsenius v. Canutson, 100 Ill. 82.

The execution of a cognovit or warrant of attorney to confess a judgment upon a note, while it may be regarded as a waiver of the right to apply for leave to open the judgment confessed, and to plead a set-off existing at the time of the giving of the power to confess, is not a waiver of the right to plead

such set-off after the judgment has been opened and a general defence allowed. Borchsenius v. Canutson, 100 Ill. 82. Compare Beaty v. Bordwell, 91 Pa. St. 438.

But, ordinarily, relief from a judg ment by default will not be given to a party merely to enable him to avail himself of a set-off. Wills v. Browning, 96 Ind. 149; Stroud's Appeal, 109 Pa. St. 326.

Where a judgment note was a provable debt at the time of the debtor's adjudication and discharge as a bankrupt, and judgment was afterwards entered thereon, the court will, on application of the defendant, open the judgment to enable him to plead his discharge in bankruptcy as a defence to the debt. Adams' Appeal, 101 Pa. St. 471.

It is a good cause for opening a judgment and letting a defendant into a defence that, at the time of the entry of the judgment on a judgment note, it was prima facie barred by the statute of Limitations. Ellinger's Appeal, 114 Pa. St. 505. See also to same effect Sussong v. Rosar, 112 Pa. St. 197; Gourlay 7. Hutton, 10 Wend. (N. Y.) 595; Douglas v. Douglas, 3 Edw. Ch. (N. Y.) 390.

Judgment has been vacated to permit defendant to defend on the ground that the debt sued on was a gambling debt. Kinderhook Bank 7. Gifford, 40 Barb. (N. Y.) 649.

Affidavit of Merits.-Under statutes providing for the setting aside of judgments on the ground of accident, mistake, surprise, etc., an affidavit of merits must be filed with the application and it must be made to appear that the judgment, as it stands, is unjust. United States v. Barnard, 1 Ariz. 319; Parrott v. Den, 34 Cal. 79; Thatcher v. Hann, 12 Iowa 303; Niagara Ins. Co. 7. Rodecker, 47 Iowa 162; Meixell v. Kirkpatrick, 25 Kan. 13; Statesville Bank . Foot, 77 N. Car. 131; Mulhollan v. Scoggin, 8 Neb. 202; Anderson v. Beebe, 22 Kan. 768; Loneheine 7. Strouse, 49 Wis. 623; Neenah Bank

. Ketchum, 48 Wis. 640; Wooster Coal Co. v. Nelson, 4 Up. Can. Pr. R. 343.

In some States the applicant must set forth a good and meritorious defence or cause of action in his affidavit. Roberts v. Corby, 86 Ill. 182; Lee v'. Basey,

85 Ind. 543; Frost v. Dodge, 15 Ind. 139; Slagle v. Bodner, 75 Ind. 330; Railway Co. v. Gates, 23 Ind. 238; Williams v. Kessler, 82 Ind. 183; Goldsberry v. Carter, 28 Ind. 59; Hite v. Fisher, 76 Ind. 231; Lamb v. Nelson, 34 Mo. 501; Castlio v. Bishop, 51 Mo. 162; Pry v. Hannibal etc. R., 73 Mo. 123; Foster v. Martin, 20 Tex. 118; Contreras v. Haynes, 61 Tex. 103; Montgomery v. Carlton, 56 Tex. 431, Baker v. Knickerbocker, 25 Kan. 288; Manney v. Gidney, 88 N. Car. 200. Compare Woodward v. Backus, 20 Cal. 137.

It is not sufficient to set forth a merely technical defence. People v. Rains, 23 Cal. 127. For this reason a verified answer cannot take the place of the affidavit. Jones v. Russell, 3 How. Pr. (N. Y.) 324; Mowry v. Hill, II Wis. 146. Compare Omro v. Ward, 19 Wis 232.

But it has been held in Nebraska that a motion to set aside a judgment rendered by default should be accompanied by defendant's proposed answer duly verified. Spencer v. Thistle, 13 Neb. 227; Hale v. Bender, 13 Neb. 66.

Where the complaint goes upon a mistaken theory of the law, a proposed answer proceeding upon the same theory and traversing the facts upon which the defendant's liability is based in the complaint, is sufficient upon an application to vacate the judgment and permit the defendant to answer. Cleveland v. Burnham, 55 Wis. 598.

An affidavit, made by some other person than the defendant, should show that such person knows the facts fully, and why the party to the action does not make the affidavit. Bailey v. Taaffe, 29 Cal. 422; Baker v. Knickerbocker, 25 Kan. 288; Woodworth v. Coleman, 57 Vt. 368.

If the affidavit made by the defendant does not state the facts in detail, it should at least show that he has stated his case fairly and fully to his counsel and is by him advised and does believe that "he has a good, full and perfect de

fence to the action on the merits." Bunham v. Smith, 11 Wis. 258.

An affidavit that defendant has "fully" stated these facts to his attorney does not comply with the requirement, if it does not also state that he "fairly" stated them. Morgan v. McDonald, 70 Cal. 32.

The affidavit of merits must show that the defendant has fully and fairly stated the facts of the case to his counsel, before the advice of the latter can amount to a prima facie showing of the merits on defendant's behalf. An affidavit that defendant has "fully and fairly stated the said defendant's defence in this action" to his counsel does not answer the requirement. Nickerson v. Cal. Raisin Co.,61 Cal. 268.

The affidavit of merits cannot be contradicted as to the existence of the facts constituting the alleged defence. Pratt v. Keils, 28 Ala. 390; Francis v. Cox, 33 Cal. 323; Reclamation Dist. v. Coghill, 56 Cal. 607; Gracier v. Weir, 45 Cal. 53; Kalkaska Mfg. Co. v. Thomas, 17 Ill. App. 235; Hill v. Crump, 24 Ind. 271; Lake v. Jones, 49 Ind. 297: Nord v. Marty, 56 Ind. 531; Buck v. Haven, 40 Ind. 221; Catlin v. Latson, 4 Abb. Pr. (N. Y.) 248; Hill v. La Crosse etc. R., II Wis. 214; Bank v. Harrison, 4 Up. Can. Pr. R. 331. Can. Pr. R. 331. But the second may be contradicted to establish the facts relied upon for the vacation of the judgment. McKinley v. Tuttle, 34 Cal. 235; Mosseaux v. Brigham, 19 Vt. 457; Lake v. Jones, 49 Ind. 297.

Where a motion to vacate a judgment was dismissed in the supreme court for want of an affidavit of merits without prejudice to a new motion, but by that time the period for filing such a motion had elapsed, it was held that the new motion would be considered as an amendment of the old one and as having been filed in time. Butler v. Mitchell, 17 Wis. 52. See also Howell v. Harrell, 71 N. Car. 161.

Jurat. For sufficiency of jurat, etc., see Craig v. Fraser, 73 Ga. 246.

1. See DECREE, vol. 5, p. 387, et seq. 2. Moses 7. Mayor, 52 Ala 198; Ty

ler v. Hammersby, 44 Conn. 419; Gault v. Wallis, 53 Ga. 675; Stuart v. Supervisors, 83 III. 341. See also In re Sawyer, 124 U. S. 200.

1. Truett v. Wainright, 4 Gilm. (Ill.) 418; McParland v. Bain, 26 Hun (N. Y.) 38; Simpson v. Hart, 14 Johns. (N. Y.) 63; Wistar v. McManes, 54 Pa. St. 318. Compare Critchfield v. Porter, 3 Ohio 518; Bush v. Craig, 4 Bibb (Ky.) 168; Davis v. Bass, 4 Ind. 313; Gray v. Barton, 62 Mich. 186; Reagan v. Fitzgerald, 75 Cal. 230.

2. Mastick v. Thorp, 29 Cal. 444; Tarver v. McKay, 15 Ga. 550; Harrison v. Harrison, 1 Litt. (Ky.) 137; Veech v. Pennebaker, 2 Bibb (Ky.) 326; Ward v. Chiles, 1 J. J. Marsh. (Ky.) 487; Yancy v. Downer, 5 Litt. (Ky.) 88; s. c., 15 Am. Dec. 35. Compare Lyon v. Robbins, 46 Ill. 277.

3. Story's Eq. Pl., § 426. But see Denn v. Clarke, 8 Pet. (U. S.) 1; Cain v. Goda, 84 Ind. 209.

4. Gainby 7. Russell, 40 Conn. 450; Yancey v. Downer, 5 Litt. (Ky.) 8; s. c., 15 Am. Dec. 35; Hunt v. Boyier, 1 J. J. Marsh. (Ky.) 484; 19 Am. Dec. 116; Floyd v. Jane, 6 Johns. Ch. (N. Y.) 489. Notwithstanding the fact that the power given to courts of law to grant new trials is sufficient for all ordinary cases, yet courts of equity may still compel a judgment creditor to submit to a new trial when equity demands it. Mulford v. Cohn, 18 Cal. 42; Carrington v. Holabird, 17 Conn. 530; s. c., 19 Conn. 84; Howe v. Martell, 28 Ill. 445; Deputy v. Tobias, 1 Blackf. (Ind.) 311; S. C., 12 Am. Dec. 243; Booth v. Stamper, 6 Ga. 172; Shepard v. McIntyre, 5 Dana (Ky.) 576; Peagrain v. King, 2 Hawks (N. Car.) 295, 605; s. c., II Am. Dec. 793; Deaver v. Erwin, 7

Ired. Eq. (N. Car.) 250; Dyche v. Patton, 8 Ired. Eq. (N. Car.) 296; Burgess v. Lovengood, 2 Jones Eq. (N. Car.) 457.

5. Dunklin v. Wilson, 64 Ala. 162; Stubbs v. Leavitt, 30 Ala. 352; Ryan v'. Boyd, 33 Ark. 778; Martin 7. Parsons, 49 Cal. 95; s. c., 50 Cal. 501; Arnold v'. Hawley, 67 Iowa 313; Jeffery v. Fitch, 46 Conn. 601; Mather v. Parsons, 32 Hun (N. Y.) 338; Williams v. Williams, 57 Ind. 500; Duncan v. Gerdine, 59 Miss. 550; Wilson v. Montgomery, 14 Sm. & M. (Miss.) 205; Ingle v. McCurry, 1 Heisk. (Tenn.) 26; Tyler v. Walker, I Heisk. (Tenn.) 734; Hamblin v. Knight, 60 Tex. 36. But not, it has been held, upon the mere grounds that there was no service of process and that the defendant was insane, there being no showing that the judgment was unjust. Woods v. Brown, 93 Ind. 164; s. c., 47 Am. Rep. 369. See also Masterson v. Ashcom, 54 Tex. 324. A judgment will not be vacated because some of a number of infant defendants united in interest, appeared only by a guardian ad litem, appointed without process previously served on such infants. Matthews v. Joyce, 85 N. Car. 258.

6. Bridgeport Bank v. Eldredge, 28 Conn. 556; Crafts v. Dexter, 8 Ala. 767; Landrum v. Farmer, 6 Bush (Ky.) 46; Dunklin v. Wilson, 64 Ala. 162; Owens v. Ranstead, 22 Ill. 161; Stone v. Skerry, 3 Iowa 582; Hanswirth v. Sullivan, 6 Mont. 203; Bell v. Williams, 1 Head (Tenn.) 229; Ridgway v. Tennessee Bank, II Humph. (Tenn.) 525; Johnson v. Coleman, 23 Wis. 452. But see State v. Holmes, 69 Ind. 577. But in some cases it has been held that where the question of jurisdiction is founded upon a false return by an offi.