#### Hatch, Kimball & Co. (judgment creditors of Jas. Simpson,) *v.*M. B. Clark.

In making a motion to the court for leave to file a suggestion to set aside a judgment as fraudulent, it is not necessary for the promovent to serve the opposite party with affidavits of the facts upon which his motion is founded, at the time the notice of the intended motion is served, nor at any time previously to making the motion; nor is it necessary in such a case to take out a rule *nisi.*

In general, when a rule *nisi*is applied for, affidavits are not *required;*but they must be produced and-filed *when the*party makes his motion to make the rule absolute. So where a party has given reasonable notice of the *grounds*upon which he intends to make his motion, he has done all that he could or need have done *by rule. When*the motion is made, the plain*269tiff should make a satisfactory showing to the judge, by *affidavit,*of its reasonableness and justice.

A suggestion against a confession of judgment as fraudulent, “ can only be filed by leave of the court on *cause*shown, creating a reasonable ground to believe that the confession is fraudulent, and upon such conditions as the court may impose.” (S. P. Underwood v. Posey, 1 Hill. 266.)

*Before RICHARDSON, J., at Abbeville, Spring Term,*1839.

The plaintiffs Hatch, Kimball & Co., who were judgment creditors of James Simpson, moved before his honor Mr. Justice Richardson, for leave to file a “suggestion, setting forth that the confession of judgment in the case of M. B. Clarke v. James Simpson, was fraudulent and not founded on a bona fide consideration, to which M. B. Clarke, the plaintiff in the said confession, should be required to plead by the usual thirty day rule.” His honor the presiding'judge, refused the motion, and assigned his reasons for so doing in his report to this court, which is as follows:

“ The foregoing motion was made just as the court was about to adjourn, and the affidavit annexed, then offered. The defendant’s counsel objected, because his client was gone, and had received no notice of such an affidavit, nor had it been filed. I overruled the motion, on the ground, that the defendant or his counsel ought to have received timely notice of the affidavit itself, and not surprised, by its being withheld to so late a moment. Although, perhaps, upon the actual adduction of the affidavit, the plaintiffs might be entitled to a rule to show cause, &c.; but such a rule was not moved for.”

The above named creditors Hatch, Kimball & Co., appealed from the decision, and moved to reverse the same, and renewed their motion, for leave to file a suggestion to set aside the said confession of judgment, on the grounds:

1. That his honor, the presiding judge, erred in holding, that upon a motion for leave to file a suggestion, affidavits of the facts relied on in support of the motion, should have been previously filed with the clerk of the court.

2. Because his honor held, that the proper course of proceeding *270was by rule against the party to show cause why the suggestion should not be filed, which rule should be made returnable to the term next ensuing, that at which it is moved for.

3. Because upon motion for leave to file a suggestion to set aside a judgment for fraud, all that is required, is notice to the opposite party of the time and place of such application, and the grounds upon which it will be made, and all that is necessary in support of the motion, is reasonable cause shown by the affidavit of the party, or others, to be made and presented to the court at the time of the application.

Curia, per Butuer, J.

The plaintiffs gave the defendant thirteen days notice, that they would move one of the judges of the Court of Common Pleas, at Abbeville Court House, for leave to file a suggestion to set aside as fraudulent a judgment of M. B. Clarke against James Simpson. The defendant objected to the sufficiency of the notice, because it was not accompanied by affidavits setting forth specifically the facts upon which the motion was to be founded; and this objection was sustained by the presiding judge — who held that before the plaintiffs were entitled to make their motion, they should have obtained a rule to show cause, and should have given the defendant timely notice by affidavit, of the facts on which they would rely to sustain their motion. The case presents merely a question of practice, and we are of opinion that the plaintiffs were not bound to serve defendant with their affidavits until they made their motion, nor to have taken out a rule nisi. The course pursued by plaintiffs has the sanction of practice; and was unobjectionable. In general, when a rule nisi is applied for, affidavits are not required; but they must be produced and filed when the party makes his motion to make the rule absolute. When a party has given reasonable notice of the grounds upon which he intends to make his motion, he has done all that he could have done by a rule; and the defendant has every advantage that he was entitled to by such rule. He has notice of plaintiff’s intention, and the general grounds of his motion. When the motion is made, the plaintiff should make a satisfactory showing to the judge by affidavit, of its *271reasonableness and justice, before an order would be made to file a suggestion, for the purpose of impeaching a confession of judgment. As was said by Mr. Justice O’Neall, in the case of Underwood vs. Posey, 1 Hill, 266, that such a suggestion “can alone be filed by leave of the court on cause shown, creating a reasonable ground to believe that the confession is fraudulent — and upon such conditions as the court may impose.” The motion for such a proceeding is addressed to the discretion of the judge, and if the adverse party has reasonable notice of it, it is all that he can require.

*Wilson*& *Martin,*for the motion.

*Burt*& *Thompson,*contra.

The circuit decision is therefore reversed.

O’Neall, Evans, and Earle, Justices, concurred.