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

(Not to be reported in full.)

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

Affirmed.

Opinion filed April 21, 1916.

Statement of the Case.

Motion by Gabriel C. Stauffer, defendant, to set aside a judgment by confession entered against him by the State Bank of Mansfield, plaintiff. To review an *307order overruling the motion, the defendant prosecutes a writ of error.

Abstract of the Decision.

1. Judgment, § 82 * —when motion to set aside judgment by confession properly overruled. Where, in an affidavit filed on a motion to set aside a judgment entered on confession and for leave to plead, no facts were set up showing a defense to the action, held that the motion was properly overruled.

2. Judgment, § 82*—when affidavit in support of motion to set aside judgment by confession insufficient. Where a judgment had been entered by confession on a promissory note, a motion to set such judgment aside and for leave to plead to the action was held properly overruled, it appearing that the affidavit filed in support of the motion stated merely that a bill in chancery, a copy of which was attached to the affidavit, was filed against the plaintiff and other persons by the defendant, asking for an accounting between them, no mention being made in the bill of the note on which the judgment was entered, nor in the affidavit except that the defendant had not, prior to the filing of the bill, any knowledge that the plaintiff was in possession of such note, since there was no showing that the note was involved in any way in the chancery suit except by inference.

3. Set-off and becoupment, § 3*—when unnecessary to interpose. There is no statute in this State requiring parties to actions begun in the Circuit Court to plead a set-off or counterclaim, and independent actions may be brought thereon.

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

C. H. Firke and Herrick & Herrick, for defendant in error.