i. judgment: fraua. By section 3499 of the Revision of 1860, it is provided, that the District Court shall have power, after the term at which a final order or judgment is made, to vacate the same (subdivision 4), “ for fraud practiced by the successful party in obtaining the judgment or order.” The only fraud alleged in this case, is, that Albaugh in hia petition stated, that the note was his individual property. It may admit of question, whether a false statement in a pleading, which the opposite party has a full and fair opportunity to deny, can, under any circumstances, amount to fraud.
2._casualty or misfortune. Subdivision 7: “ For unavoidable casualty or misfortune, preventing the party from prosecuting or defend-The casualty or misfortune in this cage^ wag ^ 20gg 0f fte observed, that, by the language of the statute, the unavoidable casualty or misfortune must be such as to prevent the party from defending. But it is clear, that the loss of the note could not prevent the party from availing himself of it as a defense. For, if it was lost, the party might still prove, that it once existed, and was now lost, and thereby have as full benefit from it as by the production of the note itself.
5. — diligence, But, as to both the causes alleged in the petition, the demurrer is well taken. To entitle a party to have a judgment or order vacated, it is necessary, *131that he aver and prove the exercise of due diligence on his part, as well as the existence of a good cause of action or defense. The general rules, as to diligence, applicable to motions for new. trials, obtain with equal force to proceedings under chapter 141 (§§ 3495 to 3506) of the Revision. By the use of ordinary diligence this plaintiff could have filed his answer in the original action controverting the allegation of ownership of the note by Albaugh, and also have set up the lost note as a defense. Having voluntarily suffered a default he must abide the consequences of his own act.
