No. 9637 | Colo. | Sep 15, 1919
Opinion by
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 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" court="Ill. App. Ct." date_filed="1893-12-12" href="https://app.midpage.ai/document/dionne-v-matzenbaugh-6994422?utm_source=webapp" opinion_id="6994422">49 Ill. App. 527, Lake v. Cook, 15 Ill. 353" court="Ill." date_filed="1854-06-15" href="https://app.midpage.ai/document/lake-v-cook-6948200?utm_source=webapp" opinion_id="6948200">15 Ill. 353.
In Richards v. First National Bank, 59 Colo. 403" court="Colo." date_filed="1915-04-15" href="https://app.midpage.ai/document/richards-v-first-national-bank-6566250?utm_source=webapp" opinion_id="6566250">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.