
    Horwitz v. Murri.
    (Decided March 26, 1928.)
    
      Messrs. Stanley & Horwits, for plaintiff in error.
    
      Mr. George S. Myers, for defendant in error.
   .Kunkle, J.

The original action involved in this case arose upon the petition of Alexander Murri to set aside a judgment against him procured by one Louis Horwitz in his lifetime, which judgment had been rendered at a former term of court.

The grounds assigned for the impeachment of said judgment were:

First, That the judgment had been obtained by-Louis Horwitz by fraud.

Second, That the judgment was obtained through a mistake or irregularity of the clerk or ministerial officer of the court.

Under the head of fraud it is claimed that the petition in the original action did not state a cause of action against the defendant, Murri.

It appears from an examination of the original petition that Murri was an indorser of certain original promissory notes; that no averment was made in the petition stating facts tending to charge said Murri with liability by reason of such indorsement.

By the terms of the said notes, none of them, except the first, was then due.

We therefore have a situation in which Murri, without any averment in the petition as to the presentation and dishonor of the notes, was held as an indorser upon all of the notes, including those not then due.

Judgment was rendered on the petition against the makers of the notes, and also against the indorsers thereof, including Murri.

If the trial court had carefully examined the notes and petition, it would have appeared to the court, in the original suit, that no case had been made out against Murri, and that to secure a judgment on the notes under such circumstances would involve a species of fraud. This 'much may be said upon that branch of the case.

As to the negligence of the clerk, or ministerial officer, we find that the defendant in error, when served with summons in the original case, came to the courthouse with the summons, and made inquiry of the guard stationed in the lower part of the courthouse, who advised him to see the clerk of the courts. Thereupon defendant in error went to the clerk’s office and saw a deputy, and exhibited his summons, and after some investigation was directed to call upon the assignment commissioner. The assignment commissioner looked up the matter, informed defendant in error that there was no case of that kind pending, and advised him to ‘ ‘ forget it. ’ ’

Defendant in error did so until his attention was called to a new suit that had been brought by plaintiff in error to marshal liens upon his (Murri’s) property.

It is claimed in the first place that the evidence of Murri was incompetent, because he was suing the executors of a deceased person. This would be true, except for the fact that the notes were originally taken by an agent, who was still living, and was a witness. In our opinion this would admit the testimony of Murri.

The court below, upon these two grounds, held that the original judgment should be vacated, but that such order of vacation should be suspended pending a hearing upon the defense of Murri. We think the judgment of the court was supported by sufficient evidence, and that such judgment should be affirmed.

Judgment affirmed.

Ferneding and Allread, JJ., concur.

Judges of the Second Appellate District, sitting in place of Judges Sullivan, 'Vickery and Levine, of the Eighth Appellate District.  