Ferguson v. Farmers' State Bank of Haxtun

• Citation: 67 Colo. 184,184 P. 370
• Decision Date: 06 October 1919
• Docket Number: 9637.
• Parties: FERGUSON et al. v. FARMERS' STATE BANK OF HAXTUN.
• Court: Colorado Supreme Court

184 P. 370

67 Colo. 184

FERGUSON et al. v. FARMERS' STATE BANK OF HAXTUN.

No. 9637.

Supreme Court of Colorado

October 6, 1919

Department 1.

Error to District Court, Phillips County; L. C. Stephenson, Judge.

Action by the Farmers' State Bank of Haxtun against Robert B. Ferguson and another. Motion to set aside judgment by confession was overruled, and defendants bring error and apply for supersedeas. Reversed, with directions.

Munson & Munson, of Sterling, and W. D. Kelsey, of Holyoke, for plaintiffs in error.

Avery T. Searle, of Haxtun, for defendant in error.

TELLER, J.

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 15 months after the delivery of the notes and 3 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 in payee's title. The motion was overruled, and the cause is before us on application for a supersedeas.

The motion to vacate the judgment should have been sustained. The general rule is 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, Lake v. Cook, 15 Ill. 353. In Richards v. First National Bank, 59 Colo. 403, 148 P. 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.

GARRIGUES, C.J., and BURKE, J., concur.