
    (Eighth Circuit — Cuyahoga Co., O., Cir’t Court,
    Oct. Term, 1899.)
    Before Caldwell, Marvin and Hale, JJ.
    THE VAN CLEVE GLASS COMPANY v. WILLIAM TILLYER et al.
    Where an alleged settlement and payment are contested, an issue is made that can not be properly tried upon affidavits. An issue should be made by proper pleadings and trial upon evidence had as in other issues.
    Error to the Circuit Court of Cuyahoga county.
   Hale, J.

The motion to dismiss the petition in error is overruled.

The plaintiff in error by his motion asked that the defendant in error be dismissed for the reason that since the commencement of these proceedings, the judgment, sought to be reversed, has been settled and paid.' This the defendant in error denies.

We are of the opinion that where an alleged settlement and payment are contested, an issue is made that can not be properly tried upon affidavits. An issue should be made by proper pleadings and trial upon evidence had as in other issues.

Of the many cases examined, we cite, as sustaining this proposition: 24 Mich., 408; 38 N. Y. Sup. Ct., 74; 32 Ohio St., 76.  