No. 16—2284.

#### Gustavus M. Graham, survivor, etc., v. Jonathan B. Graham.

Defendant in error sued Gustavus Mills Graham as surviving partner of the firm of Graham Brothers, and on September 26, 1885, a plea of the geneial issue was filed for said defendant by John and Ernest McGaffey, attorneys; on September 28, 1885, Eric Winters and G. W. Smith, attorneys, filed for same defendant a ¡ilea accompanied by an affidavit of merits sworn to by one Stillman Mann who says in affidavit that he is agent of defendant. October 10, 1885, an order was entered reciting that “on agreement of the parties to this suit now made in open court, this cause is submitted to the court for trial without a jury” and trial finding for plaintiff and judgment. October 13, 1885, motion by Eric Winters and Geo. W. Smith as attorneys for defendant, to set aside judgment. Affidavit of Winters shows that on September 26, 1885, affiant and Geo. W. Smith were retained “ on behalf of and their appearance for the defendant,” and filed plea on September 28th. Plea by McGaffey, attorneys» being then on file cause was submitted to court, October 10th, by agreement between said McGaffey and A. 0. Story, attorney for plaintiff, without notice to affiant or said Smith, and they never consented to trial of case without a jury and out of regular order. Action brought against surviving partner for alleged indebtedness of firm. Stillman Mann has been duly appointed administrator of deceased partner, and is interested in seeing that said cause is defended. Claims affiant and Smith are entitled to appear and defend in said cause, “ because they were retained by said Stillman Mann, administrator.” Affiant believes defendant has full and complete defense to plaintiff’s demand and “is informed and believes that said plaintiff and defendant are colluding together for the purpose of de*650frauding the estate of said deceased out of its interest in said partnership estate, and for that purpose have had said judgment entered up.” Motion to set aside judgment was denied and said ruling was assigned for error. The court is of opinion that the ruling óf the court on said motion was con ect. No facts are stated in the affidavit filed in support of the motion, which would authorize the court to disturb the judgment, nor which, would require the court to allow the administrator of the deceased partner to take charge of or participate in the suit by his attorneys. If the suggestions that the surviving partner was colluding with the plaintiff to fraudulently dissipate the deceased partner’s interest in the partnership estate is true, the remedy must be sought in another forum. Judgment affirmed.

Judge below, Joseph E. Gaby.

Attorneys, for plaintiff in error, Mr. Geo. N. Smith and Mr. Eric Winters;

for defendant in error, Mr. Allan C. Story.

Opinion filed April 7, 1886.

Opinion by Moran, J.