
    No. 9637.
    Ferguson, et al. v. Farmers State Bank of Haxtun.
    Judgment by Confession — Vacating. A motion to vacate a judgment confessed upon a promissory note, sustained by an affidavit that the note was obtained by fraud, and that plaintiff took an assignment thereof with notice of the fraud, must be allowed, even though the allegation of notice is traversed under oath. The issue as to the notice of the fraud is not to be tried upon mere motion.
    Judgment reversed with directions to the court below to try the cause on its merits.
    
      Error to Phillips District Court, Hon, L. C. Stephenson, Judge.
    
    
      Application for supersedeas.
    
    
      Department One.
    
    Messrs. Munson & Munson, Mr. W. D. Kelsey, for plaintiffs in error.
    Mr. Avery T. Searle, for defendant in error.
   Opinion by

Mr. Justice Teller.

Defendant in error took judgment by confession under warrants of attorney attached to two promissory notes executed by the plaintiffs in error, and assigned by the payee to defendant in error.

Judgment was entered on a cognovit some fifteen months after the delivery of the notes, and three months after they, were due.

Plaintiffs in error seasonably filed a motion to set aside the judgment, and supported it with affidavits alleging that the notes were obtained by misrepresentation and fraud and without consideration, of all of which the defendant in error had full knowledge. A counter affidavit was filed by the bank denying knowledge of any defects in the note or ip payee’s title.

The motion was overruled, and the cause is before us on application for a supersedeas.

The motion to vacate the judgment should have been sustained. The general rule in that, where, in such a case, it is made to appear by affidavit that the judgment debtor has a meritorious defense, the court should set aside the judgment and allow the defense to be made in a trial to a jury.

The issue as to the bank’s knowledge ought not to be tried by the court on such motion. Dionne v. Matzenbaugh, 49 Ill. App. 527, Lake v. Cook, 15 Ill. 353.

In Richards v. First National Bank, 59 Colo. 403, 148 Pac. 912, this court held that a judgment confessed under power of attorney will be vacated and a defense allowed, where application is made in apt time, and the affidavit in support thereof makes out a prima facie case of a defense upon the merits; and this notwithstanding counter affidavits are filed denying the matters alleged as a defense.

The judgment is reversed, with directions for the trial of the cause on its merits.

Chief Justice Garrigues and Mr. Justice Burke concur.  