(after stating the facts.) The fact that the complaint was put on the chancery instead of upon the law docket can make no difference. The court had jurisdiction of the action at law.
This action was brought under section 4197, San-dels & Hill’s Digest, which provides that : “The court in which a judgment or final order has been rendered or made shall have power, after the expiration of the term, to vacate or modify such judgment or order. * * * Fourth. For fraud practiced by the successful party in the judgment or order. * * * Seventh. For unavoidable casualty or- misfortune preventing the party from appearing or defending.”
Considering that it does not appear that the judgment was obtained by fraud practiced by the successful party, tbe court is of opinion that in this case the defendant was prevented, without any fault upon his part, from appearing- or making- his defense to the action, and that his case comes fairly within the spirit of the seventh subdivision of section 4197, Sandels & Hill’s Digest. It is also the opinion of the court that the appellee showed a valid defense at law to the action in which the judgment was rendered against him, as provided by section 4200, Sandels & Hill’s Digest, and .that the evidence tends to support the court’s finding of facts.
Practice as to injunction.Though the case was treated as a case in equity, it is in fact a case at law, and, instead of making the temporary injunction perpetual, the circuit court should have set aside the judgment, and granted a new trial.
Reversed and remanded with directions that the judgment be modified as indicated.
Wood, J., dissents.