Opinion
No. 11,733.
Decided January 31, 1927.
On application to set aside judgment rendered on cognovit notes. Application denied.
Reversed. On Application for Supersedeas.
1. JUDGMENT — Cognovit Note — Vacation — Affidavits. On application to vacate a judgment rendered on cognovit notes, supported by affidavit, counter-affidavits of plaintiff should not be considered.
2. Vacation — Motion — Apt Time. As to the objections that a second motion to vacate a judgment was filed without leave of court, and that the application was not made in apt time, see Mitchell v. Miller, 81 Colo. 1.
Error to the District Court of Jefferson County, Hon. S. W. Johnson, Judge.
Mr. JOE H. ROSS, Mr. DAVID L. MILLS, Mr. FRANK L. HAYS, for plaintiff in error.
Mr. LUKE J. KAVANAUGH, for defendant in error.
THE defendant in error sued the plaintiff in error on five cognovit notes. The application to vacate the judgment rendered in favor of the plaintiff was denied, and the defendant below sued out a writ of error. The case is presented on a motion for a supersedeas. The parties will be referred to as in the trial court.
The complaint was filed and judgment entered August 28, 1926, upon a confession filed by an attorney (not the defendant's attorney) pursuant to the terms of the note. September 4th the defendant filed a motion to vacate the judgment. The supporting affidavits stated that the note for $1,884.22, sued upon in the first cause of action, was without consideration; that it was given with the understanding that the plaintiff should give to the defendant a bill of sale of certain chattels, and that though often requested to do so, the plaintiff had failed to give the bill of sale; and that the note for $187.50, sued upon in the fifth cause of action, was paid. September 21st the defendant filed an additional motion to vacate the judgment, which was supported by her affidavit and by a verified answer, which she tendered for filing. They state that the defendant has a meritorious defense to all the notes sued upon, that said notes were executed without consideration, and that they have been fully paid, satisfied and discharged. The tendered answer denies each and every allegation in the complaint. The plaintiff filed affidavits denying the defensive matters averred by the defendant; but, of course, such counter-affidavits should not be considered. Richards v. First National Bank, 59 Colo. 403, 148 P. 912. The objection that the second motion was filed without leave of court, and the objection that the application was not made in apt time, are without merit. See Mitchell, et al. v. Miller, 81 Colo. 1, 252 P. 886, where the same objections were made, based upon the same facts.
The judgment is reversed, with instructions to sustain the motions to vacate the judgment, and to permit the defendant to file an answer within a reasonable time.