
    Edge v. Stuckey.
    (Decided March 11, 1931.)
    
      Messrs. Maddox & Maddox, for plaintiff in error. Mr. John P. Phillips, for defendant in error.
   By the Court.,

Viola F. Stuckey, plaintiff below, secured a judgment on a cognovit note in the court of common pleas of Ross county against Robert A. Edge in the sum of $10,260. Thereafter, at the same term, the defendant appeared and moved the court to vacate the judgment and permit him to file an answer. In support of his motion he submitted the answer that he proposed to file, positively sworn to, as an affidavit. The trial court refused to vacate the judgment, and from that order of refusal error is prosecuted to this court.

It is suggested in one of the briefs of the defendant in error that the doctrine in Metzger v. Zeissler, 13 N. P. (N. S.), 49, 22 O. D., N. P., 63, and City of Cincinnati v. Archiable, 4 Ohio App., 218, should be followed, to the end that a judgment cannot be opened up during term except under the conditions Set forth in Section 11637, General Code. That doctrine, which is elaborated in the Archiable case, has been repudiated by the Supreme Court in First National Bank of Dunkirk v. Smith, 102 Ohio St., 120, 130 N. E., 502. The Smith case went to the Supreme Court on certificate from the Court of Appeals of Allen county, which court expressly refused to follow the Archiable opinion. Under the doctrine of the Smith case it is apparent that the trial court had power to set aside the judgment complained of in this case, and we are only1 concerned now with whether or not that court abused its discretion in refusing to open up the judgment. It did so abuse its discretion if the very timely application made by the defendant was accompanied by a showing that in good faith the defendant was ready to interpose an adequate defense.

The defendant swears that he had on deposit in the Ohio State Bank at Washington Court House a considerable sum of money; that he knew that bank was in a precarious condition, and would not have kept that deposit there except that he thought in case the bank failed he could use the deposit as an offset against what he owed the bank on the note sued upon in this case. He says that the plaintiff is an officer of the Ohio State Bank, and that she in co-operation with other officers of the bank, at different times when the note had been renewed in the year previous to May, 1930, when the bank failed, had caused him to believe that this note was owned by the bank by causing such renewals to be made in the name of the bank. This is equivalent to saying that the plaintiff, who claims to have become the owner of the note in April, 1929, deceived the defendant, or caused others to deceive him, into believing that the bank, and not the plaintiff, was the holder of the defendant’s note, and thereby secured the deposit which he had in the bank at the time the bank failed. If these claims are true they would not necessarily defeat the plaintiff’s title to the note, but they would entitle the defendant to the set-off which he would have had against the bank if the bank had been the owner of the note at the time it failed. Equity would perhaps require him to make an assignment of his deposit to the plaintiff as a condition upon which he would secure the set-off. While no such assignment is pleaded or tendered in the answer, the pleading makes an equitable defense, and it was within the power of the trial court to protect the rights of both parties, as the facts might warrant.

While we have referred to the affidavit in this case as an answer, it is not an answer, and when the case goes back to the common pleas, the defendant is not limited in his answer to the precise allegations that appear in the affidavit which he calls an answer.

The judgment and order of the common pleas court is reversed, and the case is remanded to that court, with direction to vacate the judgment and permit the defendant to answer.

Judgment reversed.

Mauck, P. J., Middleton and Blosser, JJ., concur, concur.  