#### The Springfield and Northwestern Railway Co. *et al. v.*Pike C. Ross.

*Jcdgment—vacating—affidavit.*An affidavit filed by a receiver of a railway company to vacate a judgment in ejectment against the company, in which no one appeared for the company at the trial, and which alleges, on information and belief, that the plaintiff, by a written agreement, in consideration of the promise of the company to pay him a certain sum, sold the land to the company, and that he has reasonable hopes of obtaining the agreement or proving its contents, but which fails to show that the consideration had been paid, is fatally defective in not positively showing the existence of such agreement, and in not showing payment.

Appeal from the Circuit Court of Mason county; the Hon. Lyman Lacey, Judge, presiding.

This suit was commenced in ejectment, against the Springfield and Northwestern Railway Company, to recover premises described in the declaration, which plaintiff claimed in fee simple. Service of process was had on the railway company, and at the November term, 1874, a trial was had, on a plea of not guilty, by consent of parties, before the court, without the intervention of a jury. On that trial, the court found the issues for plaintiff, and that he was the owner, in fee simple, of the premises. That judgment was, on motion of defendant, set aside, under the statute, and a new trial awarded.

At the November term, 1875, no one appearing for defendant, the cause was submitted to a jury for trial, who found for plaintiff, and upon their verdict the court rendered judgment in the usual form. In the meantime, George N. Black had *180been appointed receiver, by one of the Federal courts, of the effects of the railway company, and had taken actual possession of all its property, both real and personal. At the same term of court at which the trial was had, the receiver entered his motion to vacate the judgment, and for leave to defend, which motion the court overruled, and that decision is assigned for error.

Mr. A. Orendorff, for the appellants.

Messrs. Fullerton & Wallace, for the appellee.

Mr. Justice Scott

delivered the opinion of the Court:

Both the railway company and the receiver appointed by the Federal court have joined in this appeal, and assigned errors, but there can be no pretense that the judgment was erroneous as to the company. There had been service of process, upon the company, and appearance by attorney, and one trial had upon the merits of the case, after which the judgment rendered was set aside, under the statute, on its motion.

As to the motion made by the receiver, to vacate the last judgment rendered, there is one conclusive reason why it should not be granted. The affidavit filed in support of the motion shows no merits in the defense the receiver proposes to make. It is alleged, on information and belief, that plaintiff, by a written agreement, in consideration of the promise of the company to pay him a certain sum of money, sold the land in controversy to the railway company, and that the receiver has reasonable hopes of obtaining possession of the agreement or proving its contents. The affidavit contains no averment the consideration mentioned had ever been paid, or any positive averment any such agreement existed. It is fatally defective in both respects.

The judgment will be affirmed.

*Judgment affirmed.*