
    Miracle v. Lancaster.
    1. Practice: vacation of judgment. Upon a motion to vacate a judgment rendered by default the court may first try the question of the validity of the defense, and if that shall appear insufficient should overrule the motion.
    
      Appeal from Blade Hawh District Court.
    
    Monday, June 11.
    The plaintiff commenced an action in the Circuit Court of Hamilton county against defendant, upon an account for legal services and disbursements. The defendant being a nonresident of the state, the suit was by attachment. On the 20th day of January, 1874, the defendant appeared by counsel, and on his motion the venue of the action was changed to the Black Hawk county Circuit Court. On the 25th day of February, 1874, the transcript in said action was'filed in Black Hawk county by the plaintiff. On the next day default was entered against defendant for want of an answer, and the defendant not being present himself, or by counsel, a judgment was rendered against him.
    On the 7th day of April, 1874, the defendant filed in said action his petition to vacate the judgment and for a new trial. It is alleged in said petition as. an excuse for the défault that defendant was sick and unable to attend to business, and that he was also prevented from attending to said case by reason of the sickness and death of his wife. Afterward the defendant filed an answer to plaintiff’s original petition, taking issue upon most of the items of account. The venue was changed to the Black Hawk county District Court. A trial was had upon the petition for a new tidal, and judgment was rendered overruling the same. Defendant appeals.
    
      Boies, Allen c& Couch, for appellant.
    
      J. B. Powers, for appellee.
   Rotiirook, J.

This proceeding is authorized by section 3154 of the Code. Section 3159 provides that “ the judgment shall not be vacated on motion or petition , , . A until it is adjudged that there is a valid defense to the action in which the judgment is rendered.” * * * *. Section 3160 provides that “the court may first try and decide upon the grounds to vacate or modify a judgment or order before trying or deciding upon the validity of the defense.

Evidence was introduced both as to the grounds to vacate, and upon the validity of the defense, and in our opinion the ruling of the court below was correct on both grounds.

The evidence as to the defendant’s sickness, and his incapacity to look after his business interests, at the time of, and before the default, is not of such satisfactory character as to warrant us in interfering with the judgment for that reason. The same may be said as to the evidence upon the validity of the defense. There is no such clear and satisfactory showing that defendant had a good defense as to warrant us in reversing the judgment. We need not set out or review the evidence.

Affirmed.  