#### John Nelson, Appellee, v. Samuel Cohn et al., on appeal of Michael Cagney, Appellant.

Gen. No. 19,346.

(Not to be reported in full.)

Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker and Hon. Richard S. Tuthill, Judges, presiding. Heard in the Branch Appellate Court at the March term, 1913. Reversed and remanded.

Opinion filed April 28, 1915.

Rehearing denied May 12, 1915.

*445Abstract of the Decision.

1. Equity, § 479 * —when decree pro confesso must conform to the Mil. It may be shown by a defendant in a decree entered pro confesso that the decree is not justified by the averments in the bill.

2. Mortgages, § 477*—when exhibits on bill to foreclose control allegations. Where a bill for the foreclosure of a mortgage predicates a right to relief on a note and mortgage, which, as exhibits, are made a part thereof by reference, they control the allegations of the bill, and hence where they show that an interest note, nonpayment of which was the basis of the proceeding, had not matured at the time suit was begun, a decree pro comfesso will be set aside.

Statement of the Case.

Bill by John Nelson in the Circuit Court of Cook county against Samuel Cohn, Michael Cagney and Hannah C'ohn to foreclose a deed of trust in the nature of a mortgage, executed by Samuel Cohn and Hannah Cohn to secure the payment of notes by them payable to the order of themselves. The deed was entered pro confesso. There is no appearance in the Appellate Court by the appellee.

Michael Cagney, pro se.

*

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

Mr. Presiding Justice Baume

delivered the opinion of the court.