#### GEORGE B. SANDERSON, Appellant, *vs.*HAMILTON B. DOX, Appellee.

APPEAL E35.0M ROCK CIRCUIT COURT.

Where, after personal service, a judgment has been entered against a defendant in default of plea, and no fraud or improper conduct is imputed to the plaintiff or his attorney in procuring the same, the court -will not disturb the judgment, upon affidavit of merits, — the defendant, by mere negl'ect, having permitted a year to elapse before filing his motion to vacate.

Where a judgment rendered upon default, after personal service of the summons or declaration, is sought to be vacated, reasonable diligence must be used in mailing the application.

Tbis was an appeal from an order of tbe Circuit Court of Bock county overruling a motion to vacate a judgment rendered against tbe defendant in default of a plea, ou an affidavit of merits. Tbe facts and circumstances of tbe case are stated at large in tbe opinion of tbea court.

*M. H. Owpenterr,*for appellant.

*By the*Oowrt,

WhitoN, C. J.

We are obliged to affirm tbe order of tbe Circuit Judge in tbis case; but we do so with some reluctance. It seems tbat personal service was made upon tbe defendant, and tbat no defence was made to tbe suit. Of course judgment was recovered against bim.

Tbis was in July, 1856. In July, 185T, be made a motion to vacate tbe judgment, founded upon an affidavit wbicb sets forth tbe following facts : tbat be was only an accommodation endorser of tbe bill which was tbe foundation of tbe suit, and never received anything of value for, or on account of it. That *165when tbe bill matured be resided in St. Louis, Missouri; that be never received notice of tbe protest of tbe bill; and that be bas been informed and believes that tbe notice of protest intended for him was sent to bis address at Janesville, where be'has never resided: that when said bill matured be bad in bis bands, securities for more than tbe amount due on tbe bill, and of value exceeding tbe amount due on tbe bill, wbicb be subsequently-surrendered to A. E. Norris and H. B. Bunster, in tbe belief that tbe bill bad been paid, — be never having received notice of protest. Tbe affidavit further states that on being served with a copy of tbe declaration be applied to and retained Mr. Patten, an attorney at law, to defend tbe suit; that be supposed Patten bad taken tbe necessary steps to defend it, and that it was still pending and undisposed of, until about twenty days before tbe affidavit was made, when be learned, by a letter received by bim in St. Louis from M. H. Carpenter, that a judgment bad passed against bim by default. Tbe affidavit further states, that although nearly a year bad elapsed since tbe judgment was obtained against him, and although be bad been several times in Wisconsin since that time, and bad all tbe time property in tbe county of Eock subject to levy, no execution bad been issued against bim, nor tbe costs taxed, nor was be notified that a judgment bad been obtained against bim, except as above stated. Tbe affidavit further states, that after a full statement of tbe facts of tbe case to bis counsel, be bas been advised by bim that be bas a perfect defence upon the merits.

Tbe above is a statement of tbe facts upon wbicb Sanderson relied in tbe court below to obtain an order vacating the judgment. We see no evidence of any trick, or unfair dealing on tbe part of tbe plaintiff. He gave notice to tbe defendant personally, by tbe service of tbe declaration upon bim, and obtained bis judgment in tbe usual manner. But we should be of opinion that tbe judgment ought to be vacated, if tbe defendant bad shown reasonable diligence in making bis application.

But it seems strange that a person who supposed be bad a *166good defense to an action in which the amount claimed was so large, should not communicate with the attorney he had employed to defend the suit for a year after he had retained him, when he must have known that two terms of the court in which the action was pending, had taken place. The affidavit states that Patten was.retained on the day the declaration was - served.

This appears to have been done on the 2d day of July, 1856, with notice of the .entry of a rule to plead in twenty days. Having retained an attorney to defend the suit, he appears to have entirely neglected to make any inquiry of his attorney about it for a year, and finally to have heard that a judgment had been obtained against him from a third person, although he was .in Wisconsin several times after the judgment was recovered, and before the affidavit was made. We think this entire neglect of the case by the defendant for a year, in the absence of any evidence of trick or fraud on the part of the plaintiff, justified the judge nf the Circuit Court in denying the motion. We must therefore affirm the order appealed from.