
    JUDGMENTS — SETTLEMENTS—TRIAL.
    [Cuyahoga Circuit Court,
    December 22, 1899.]
    Caldwell, Marvin and Hale, JJ.
    Van Cleve Glass Co. v. William Tillyer et al.
    1. Denial on Settlement oe Judgment to be Reversed.
    Where the alleged settlement of a judgment sought to be reversed on error is denied, an issue is made which cannot be properly tried upon affidavits.
    2. Should be Made and Tried as Other Issues. ■
    Such issue should be made by proper pleadings and trial, upon evidence, had as upon other issues.
    Error to the Court of Common Pleas of Cuyahoga county.
   Hale, J.

The motion to dismiss the petition in error is overruled.

The plaintiff in error, by his motion, asked that the defendant in error be dismissed for the reason that since the commencement of these ..proceedings, the judgment sought to be reversed has been settled and paid This the defendant in error denies.

We are of llie opinion that where an alleged settlement and payment are contested, an issue is made that can not be properly tried upon affidavits. An issue should be be made by proper pleadings and trial upon evidence had as in other issues.

Of the many cases examined, we cite, as sustaining this proposition: Collins v. Dairs, 32 Ohio St., 76; 24 Mich., 408; 38 N. Y. Sup. Ct., 74; 32 O. S., 76.  