
    No. 634
    FERRANDO et v. CICCHINO et
    No. 19864.
    Supreme Court
    On motion to certify.
    Dock. June 4, 1926.
    677. JUDGMENTS — 1. Where a petition is filed in which those sought to vacate a judgment after term and there is evidence to show that sickness allaged in the petition as a ground for vacation did not prevent the plaintiff from defending, should the judgment be vacated?
    2. Is an action for the vacation of a judgment after the term in which it is rendered an action in equity and therefore appealable, or is it an action at law?
    Attorneys — Gaughan & Collins and Nichola & Horn, Cleveland, for Pltf.; Jacobsen & Jacobsen, Cleveland, for Deft.
   _ Carmine and Raffaela Cicchino filed a petition in the Cuyahoga Common Pleas whereby it was sought to effect the vacation of a judgment.

It appears that Amedeo Ferrando et filed suit ag'ainst Cicchino and that during the pendency of that action Cicchino' conveyed certain real estate to his wife Raffaela. Pursuant to the rendition of judgment against Cicchino, Ferrando filed to suit to set aside the conveyance in order to subject it to the payment of his judgment. Cicchino thereupon filed a petition to vacate the judgment, the grounds for vacation being that illness prevented him from defending the action. A good defense to the action was submitted. There was some evidence to show that Cicchino was not ill at the time judgment was taken.

The Common Pleas Court vacated the judg ment and allowed Cicchino to file an answei setting up a defense.

The Appeals refused to consider the action on the ground that it had no jurisdiction because the action was not in equity.

Ferrando in the Supreme Court contends:

1. That by reason of the evidence the illness alleged in the petition that a cause of action is not stated.

2. That this ease is an action in equity and not at law. OA. 4 Abs. 321.  