#### State Bank of Mansfield, Defendant in Error, v. Gabriel C. Stauffer, Plaintiff in Error.

(Not to be reported in full.)

Error to the Circuit Court of Piatt county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the October term, 1915.

Affirmed.

Opinion filed April 21, 1916.

Statement of the Case.

Judgment by confession by the State Bank of Mansfield, plaintiff, against Gabriel C. Stauffer, defendant. From a judgment overruling a motion by defendant to vacate the judgment and be allowed to plead, defendant brings writ of error.

This motion was supported by defendant’s own affidavit, which, in substance, stated that on October 28, 1914, he- filed a bill in equity on the chancery side of said Circuit Court calling for an accounting by the bank with him, which bill was made a part of the affidavit, and that the contents of the bill were true; that he verily believed upon an accounting had between himself and the bank, said note would be shown to be without consideration and that the bank would be found to be indebted to him; that said bill was then pending and service had been had upon the defendants therein mentioned; that he verily believed that upon such accounting being had, it would be disclosed that he had a good defense to the whole of plaintiff’s cause of action.

The bill of complaint referred to averred that the State Bank of Mansfield was the successor of another bank known as the Commercial Bank of Mansfield; that the latter bank was conducted as a copartnership in which William H. Firke and several other persons were associated together in the banking business as copartners; that complainant for a number of years *133prior to 1897, the date of the organization of the State Bank, had been a depositor and customer of the Commercial Bank, and after the latter was succeeded by the State Bank he continued to be a depositor, customer and patron of the State Bank; that for the past fifteen years said Firke has been president of the State Bank, and for'ten years the defendant Burns has been cashier thereof. The bill further averred that he had had trouble in getting his pass books from the State Bank, and alleged the amount of his income, etc.; that some time prior to the year 1913, the defendant Bums told him that he had overdrawn his bank account, and certain sums of money were due and owing from him to the State Bank, and requested him to give his note for said sum; that he did not remember nor could he state the beginning of the transactions following the first note given by him to the State Bank; that in February, 1913, Burns, the cashier, informed him that" he owed the State Bank $5,300, and asked him to give his note for that amount, and he thereupon executed the note in question in this case; that said State Bank through Firke and Bums were insisting that he pay said note, and unless he did pay it they would cause a judgment by confession to be taken thereon; that he was endeavoring to learn from the State Bank and said Firke and Burns the nature of the indebtedness and consideration for which the note was given, but the latter had refused to make him any statement ; that he verily believed said note to be without any consideration therefor.

The bill made the State Bank, together with Firke and Burns, parties defendant and prayed that an accounting be taken of all the transactions and dealings of complainant from the time he commenced doing business with the defendants, or either of them, and that upon such accounting being taken that said bank, Bums and Firke or such of them as might be found to be indebted to him, might be decreed to pay bim *134what, if anything, might be found by such accounting to be due him; that he was willing and”ready to pay to the defendants, or either of them, any sums of money which might be found to be due from him to them upon • said accounting; that the defendants to said bill might be enjoined from entering up judgment upon said note, etc.

Abstract of the Decision.

1. Judgment, § 82 * —when affidavit in support of motion to set aside judgment by confession on note insufficient. On a motion to set aside a judgment by confession on a judgment note, an affidavit in support - of such motion held insufficient.

2. Judgment, § 72*—when judgment by confession not opened up. A judgment by confession on a judgment note will not be opened up for the purpose of permitting a plea of set-off.

3. Lis pendens, § 3*—when suit in equity pending. A suit in equity is not pending until the summons has been issued and an effort made to secure service.

4. Abatement and revival, § 37*—when suit in equity not ground for abatement. Where a judgment by confession is entered before a summons is issued in a suit in equity, such suit is not a pending action so as to abate the suit at law.

C. C. Le Forges and Elim J. Hawbaker, for plaintiff in error.

C. W; Firke and Herrick & Herrick, for defendant in error.

*

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

Mr. Presiding Justice Eldredge

delivered the opinion of the court.