#### John V. Berg for use of Edgar F. Seney and Rowland T. Rogers, Defendant in Error, v. L. E. Randall, Plaintiff in Error.

Gen. No. 20,116.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding. Heard in this court at the March term, 1914.

Affirmed.

Opinion filed November 30, 1914.

Statement of the Case.

Garnishment proceeding by John V. Berg for the use of Edgar F. Seney and Rowland T. Rogers against L. E. Randall. The defendant was served with a garnishee summons, was defaulted for want of appearance and a conditional judgment was entered against him. Later the judgment was made final for failure of defendant to appear after service of a writ of scire facias was issued and served upon him. The next day after final judgment was entered defendant appeared and moved to have the final judgment set aside, presenting in support of his motion a sworn petition in which he set forth that when he was first served with summons he was not indebted to John V. Berg and had been at no time since; that when he was first served he was about to leave the city and notified Seney, one of the plaintiffs, to that effect and also that he was not indebted to Berg; that Seney told him that he would consent to have the matter continued and that relying, on Seney’s promise he left the city and paid no further attention to the matter until he was served with the scire facias to appear in court at 9:30 a.'m.; that he did appear at' said time and place and after sitting in the court room until about 10:30 a. m. and not hearing his case called he inquired of the clerk as to it and the clerk informed him that his case was the first one called and that judgment had been entered against him. The motion *628to vacate was continued for hearing at various times and when the case was last called for hearing the defendant failed to appear and the court overruled the motion and ordered that the judgment stand. To reverse the judgment, defendant prosecutes a writ of error. "

Abstract of the Decision.

1. Garnishment, § 116a * —vacation of default judgment. Overruling of motion to vacate a default judgment against a garnishee, held not error where the excuses alleged for allowing both the conditional and the final judgment to go against him were not sufficient in themselves and there was no proof of the allegations except the affidavit attached to the petition.

2. Garnishment, § 110 * —when proof of judgment against original debtor not essential. A default judgment may be taken against a garnishee without proof of the judgment upon which the garnishment proceeding was based, where it was set upon in the affidavit for the garnishee summons so that the default of the garnishee admitted it.

Caswell & Healy, for plaintiff in error.

No appearance for defendant in error.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice Brown

delivered the opinion of the court.