
    Herbert McCabe, Trustee, Appellee, v. Albert Fluckinger, Appellant.
    JUDGMENT: Opening or Vacating — Default—Burden of Proof. The 1 burden of proof is on one moving to set aside a default judgment, to prove existence of facts on 'which he relies.
    APPEAL AND EEEOE: Eeview — Motion to Set Aside Default — Pre2 sumptions — Evidence. Where there is a conflict between an affidavit filed by defendant in support of a motion to set aside a default, and affidavit of the plaintiff, a judgment by the trial court refusing to set aside the default will not be. disturbed by the Supreme Court.
    
      Appeal from Dubuque District Court. — D. E. Maguire, Judge.
    May 21, 1919.
    Rehearing Denied September 20, 1919.
    Appeal from a ruling on a motion to set aside a default and judgment. Motion overruled. Defendant appeals.
    
    Affirmed.
    
      G. A. Barnes, for appellant.
    
      J ohn A. Cunningham and L. G. Mwrd, for appellee.
   G-atnor, J.

Plaintiff is, and at the time this action was commenced was, trustee in bankruptcy in the matter of the estate of Melchoir Schmitt. In that capacity, he commenced an action against the defendant herein to recover a certain sum claimed to be due for goods, wares, and merchandise sold by the bankrupt to the defendant between the 1st day of April, 1916, and the 1st day of July, 1916. The petition in bankruptcy was filed on July 20, 1916. Plaintiff was not adjudged a bankrupt until the 24th day of August, 1916. The amount claimed in this suit is 1244.49. On July 2, 1917, due notice was served on the defendant, by tbe trustee in bankruptcy, of tbe filing of tbe petition, and of the subject-matter of tbe claim against bim. Tbe defendant failed to appear, and judgment by default was entered against him on the 2d day .of October, 1917. On tbe Itb of October, defendant was granted leave to file a motion to set aside tbe judgment; and on tbe 5th, it was ordered that said motion be presented within 30 days, and execution stayed until tbe motion was passed upon. On tbe 29th day of October, a motion was filed, supported by bis own affidavit, in which be says that; on tbe day tbe notice of suit was served upon bim, be met plaintiff’s attorney, John A. Cunningham, on tbe street, and bad a conversation with bim in regard to the case; that he made a proposition of settlement; that tbe said Cunningham took tbe proposition under advisement, and agreed that nothing further would be done in said case until after be bad submitted the proposition to his client, and until after he bad notified tbe defendant as to whether or not tbe proposition would be accepted; that be made the proposition to. avoid trouble and expense, and that it was made in good faith; that, up to tbe time of tbe entry of the default, John A. Cunningham bad never communicated with bim, as he agreed to do, and never informed bim in any way as to whether or not bis client would accept or reject tbe proposition of settlement; that be relied upon this promise, and believed, at tbe time, that tbe said John A. Cunningham was acting in good faith; that nothing further was done by bim in said cause, because of bis reliance upon tbe good faith of plaintiff’s attorney. He further says that be has a full and complete defense, and sets out tbe facts upon which be predicates bis defense.

In an amendment to bis affidavit, be says that tbe arrangement was never reduced to writing, and be relied Tip-on tbe verbal statement made by Cunningham.

Thereupon, defendant presented for filing, in tbe event his motion should he sustained, an answer and counterclaim, in which he alleges that, on the 10th day of May, 1916, he entered into a verbal contract with Melchoir Schmitt, in which Schmitt agreed to purchase from him a Metz truck, of a pattern and style that defendant did not then have in stock, said truck to be equipped with demountable rims, and Schmitt agreed to pay for said truck $600, in sausage meat and other goods and merchandise manufactured by Schmitt, as the same should be needed by the defendant, until the $600 was fully paid; that there was due said Melchoir Schmitt from the defendant, on the 10th day of May, 1916, for goods already furnished, $74.64; that, at the time the truck was delivered, it was not equipped with demountable rims, and Schmitt refused to accept it; that the defendant then agreed that it could be used by Schmitt until the same was equipped with demountable rims. He further says that Schmitt used said truck from May 10th to July 1st, a period of 50 days, at which time, Schmitt failed in business, and refused and neglected to carry out the terms of the contract; that the reasonable value of the use of the truck was $6.00 a day, or $300.

‘It does not appear, nor is it claimed, that the defendant ever furnished the demountable rims.

By way of counterclaim, the defendant says that, when the truck was delivered to Melchoir Schmitt, it was new, and was worth the sum of $600; that, when returned to the defendant, it was not worth to exceed $275; that he has been damaged by the failure of said Schmitt to carry out the terms of said contract in the sum of $325.

In the matter of the motion to set aside the default, the plaintiff filed counter affidavits. John A. Cunningham deposed and said that, since the time of the service of the notice, he never had any talk with defendant in reference to anything pertaining to the case, and he absolutely and unqualifiedly denies each and every allegation made by defendant as to any oral agreement such as appears in defendant’s affidavit, attached to his motion to set aside the judgment.

It appears, also, that, prior to the commencement of this action, the defendant in this suit brought an action in replevin against Melchoir Schmitt to recover the possession of the truck referred to in his affidavit,-and that Schmitt afterwards became a bankrupt, and this plaintiff, as trustee, was substituted in his stead. It appears that, in that replevin suit, this defendant, testifying for himself, said that he often loaned trucks to prospective buyers, and made no practice of charging them for the use.

The duty of the court to set aside the default and judgment appears to rest purely upon whether Cunningham made the statements alleged to have been made by him, and entered into the agreement claimed to 11376 'Jeen made, breached it, and thereby deceived defendant into failing to interpose any defense that he might have to the plaintiff’s claim. This fact was resolved by the trial court against the defendant. There is a clear conflict between the affidavits filed by the defendant and the affidavit filed by Cunningham. We are not able to say which has told the truth. The burden was on defendant to prove the existence of the facts on which he relies. This appeal is based on error. ' We cannot say that the court erred 111 lte decision. The court saw the parties, Until there is a clear showing of error in its ruling, we cannot disturb it. The case is, therefore, — Affirmed,.

Ladd, C. J., Weaver and Stevens, JJ., concur.  